Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R No. 187167

August 16, 2011

PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. ROQUE,
JR., AND UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL BALOT, RUBY AMOR
BARRACA, JOSE JAVIER BAUTISTA, ROMINA BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN
MARRI CAETE, VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON ESCOTO,
RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER, CARLA REGINA GREPO, ANNA MARIE
CECILIA GO, IRISH KAY KALAW, MARY ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL
MUSNGI, MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR RAMOS, ENRIK
FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE
MARIE ROA, NICHOLAS SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA ANNE
TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS
CAPACITY AS SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON. DIONY
VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL MAPPING & RESOURCE
INFORMATION AUTHORITY, and HON. HILARIO DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF
THE PERMANENT MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED NATIONS,
Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 95221
(RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime baselines of the Philippines
as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea and the Contiguous
Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties over their "territorial sea,"
the breadth of which, however, was left undetermined. Attempts to fill this void during the second round of
negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical
errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was
prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of
the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III prescribes
the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental shelf.8 Complying with these requirements, RA
9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as "regimes of
islands" whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as "citizens, taxpayers or x
x x legislators,"9 as the case may be, assail the constitutionality of RA 9522 on two principal grounds, namely: (1)
RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine states sovereign power, in
violation of Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary
treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to maritime passage by all vessels
and aircrafts, undermining Philippine sovereignty and national security, contravening the countrys nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional provisions.13
In addition, petitioners contend that RA 9522s treatment of the KIG as "regime of islands" not only results in the loss
of a large maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress their argument of
territorial diminution, petitioners facially attack RA 9522 for what it excluded and included its failure to reference
either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions compliance
with the case or controversy requirement for judicial review grounded on petitioners alleged lack of locus standi and
(2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS III, preserving Philippine
territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not undermine the countrys
security, environment and economic interests or relinquish the Philippines claim over Sabah.
Respondents also question the normative force, under international law, of petitioners assertion that what Spain
ceded to the United States under the Treaty of Paris were the islands and all the waters found within the boundaries
of the rectangular area drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
The Issues
The petition raises the following issues:
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality
of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2) the
writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the merits, we find
no basis to declare RA 9522 unconstitutional.
On the Threshold Issues
Petitioners Possess Locus
Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition
alleges neither infringement of legislative prerogative15 nor misuse of public funds,16 occasioned by the passage
and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance
necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find
other litigants possessing "a more direct and specific interest" to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave abuse

of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power
of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial
vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of government.20 Issues of
constitutional import are sometimes crafted out of statutes which, while having no bearing on the personal interests
of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
Petitioners submit that RA 9522 "dismembers a large portion of the national territory"21 because it discards the preUNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded
in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over
waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the
United States. Petitioners argue that from the Treaty of Paris technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular
area delineated in the Treaty of Paris.22
Petitioners theory fails to persuade us.
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among
others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from the baselines],
contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of decades-long
negotiations among United Nations members to codify norms regulating the conduct of States in the worlds oceans
and submarine areas, recognizing coastal and archipelagic States graduated authority over a limited span of waters
and submarine lands along their coasts.
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific
basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic
starting points to measure the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone and
the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision
the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which States parties exercise treatybased rights, namely, the exercise of sovereignty over territorial waters (Article 2), the jurisdiction to enforce
customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and the right to exploit the living
and non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the
rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in
accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The
baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of
Paris, but from the "outermost islands and drying reefs of the archipelago."24
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim,
diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory
through occupation, accretion, cession and prescription,25 not by executing multilateral treaties on the regulations of

sea-use rights or enacting statutes to comply with the treatys terms to delimit maritime zones and continental
shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on
general international law.26
RA 9522s Use of the Framework
of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent
with the Philippines Claim of Sovereignty
Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines, and
to measure the breadth of the applicable maritime zones of the KIG, "weakens our territorial claim" over that area.27
Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic baselines
results in the loss of "about 15,000 square nautical miles of territorial waters," prejudicing the livelihood of
subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA 3046 and RA 9522
and the extent of maritime space encompassed by each law, coupled with a reading of the text of RA 9522 and its
congressional deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view.
1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the location of
basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the
baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over the KIG, assuming
that baselines are relevant for this purpose.
Petitioners assertion of loss of "about 15,000 square nautical miles of territorial waters" under RA 9522 is similarly
unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of basepoints, increased the
Philippines total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below:29
Extent of maritime
area using RA 3046,
as amended, taking
into account the
Treaty of Paris
delimitation
(in
square
nautical
miles)

Extent of maritime
area using RA 9522,
taking into account
UNCLOS III (in
square
nautical
miles)

Internal or
archipelagic
waters

166,858

171,435

Territorial Sea

274,136

32,106

Exclusive
Economic Zone
TOTAL

382,669
440,994

586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends way
beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where there are
overlapping exclusive economic zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA 9522
draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines
continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the Republic of the Philippines consistent with Article
121 of the United Nations Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago,
adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of
UNCLOS III. First, Article 47 (3) of UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago." Second, Article 47 (2) of UNCLOS III requires
that "the length of the baselines shall not exceed 100 nautical miles," save for three per cent (3%) of the total
number of baselines which can reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG32 and the Scarborough Shoal for
several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the
Philippine archipelago,33 such that any straight baseline loped around them from the nearest basepoint will
inevitably "depart to an appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to emphasize the

foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys and the Scarborough Shoal
are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating
the provision of international law which states: "The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago." So sa loob ng ating baseline, dapat magkalapit ang mga
islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still
allowed by international law to claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line
which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough
Shoal, itong malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na
sila magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should follow the natural
configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this
baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as
discussed by respondents:
1avvphi1

[T]he amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its
maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As
defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point) is 140.06
nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of the [UNCLOS III], which
states that "The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of
the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted from the
baselines system. This will enclose an additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by geodetic survey
methods. Accordingly, some of the points, particularly along the west coasts of Luzon down to Palawan were
later found to be located either inland or on water, not on low-water line and drying reefs as prescribed by
Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to
classify the KIG and the Scarborough Shoal as "Regime[s] of Islands under the Republic of the Philippines
consistent with Article 121"36 of UNCLOS III manifests the Philippine States responsible observance of its pacta
sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any "naturally formed area of land,
surrounded by water, which is above water at high tide," such as portions of the KIG, qualifies under the category of
"regime of islands," whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is
without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah,
situated in North Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitutions
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally "converts"
internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes
passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably

expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution39 or as "archipelagic waters"
under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or
distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect
the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State
of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained
therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent
discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to
regulate innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now
pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant
innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and
conditions for their exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus
automatically incorporated in the corpus of Philippine law.44 No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with customary international law without risking
retaliatory measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and
sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in
their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic
States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity
prevents the treatment of their islands as separate islands under UNCLOS III.46 Separate islands generate their
own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the
States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State
Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative
guides, which, absent enabling legislation, "do not embody judicially enforceable constitutional rights x x x."49 Article
II provisions serve as guides in formulating and interpreting implementing legislation, as well as in interpreting
executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the present petition lacks factual basis to substantiate the
claimed constitutional violation. The other provisions petitioners cite, relating to the protection of marine wealth
(Article XII, Section 2, paragraph 251 ) and subsistence fishermen (Article XIII, Section 752 ), are not violated by RA
9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving
solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime
delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the

maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to
be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui generis maritime
space the exclusive economic zone in waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to 200 nautical miles.53 UNCLOS III,
however, preserves the traditional freedom of navigation of other States that attached to this zone beyond the
territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound to pass RA
9522.54 We have looked at the relevant provision of UNCLOS III55 and we find petitioners reading plausible.
Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price. Absent an UNCLOS III compliant baselines law, an archipelagic
State like the Philippines will find itself devoid of internationally acceptable baselines from where the breadth of its
maritime zones and continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an open
invitation to the seafaring powers to freely enter and exploit the resources in the waters and submarine areas
around our archipelago; and second, it weakens the countrys case in any international dispute over Philippine
maritime space. These are consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as
embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines maritime
zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE C. MENDOZA
Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA

Today is Thursday, June 04, 2015

Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et al., G.R. No. 206510, September 16, 2014
Decision, Villarama, Jr. [J]
Concurring Opinion, Sereno [J]
Concurring Opinion, Leonen [J]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 206510

September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S.
INIGUEZ, JR., Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR.,
Kalikasan-PNE, MARIA CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong Alyansang Makabayan,
HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk VF A
Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno,
JOAN MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN
A. GUAN, NESTOR T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as
Commanding Officer of the USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines, HON. ALBERT F. DEL ROSARIO, Secretary,
pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the President, .
HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON. RAMON JESUS P. P AJE,
Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO
RENA, Commandant, Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine
Coast Guard Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the
Philippines Command and LT. GEN. TERRY G. ROBLING, US Marine Corps Forces. Pacific and Balikatan
2013 Exercise Co-Director, Respondents.
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary
Environmental Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of
Procedure for Environmental Cases (Rules), involving violations of environmental laws and regulations in relation to
the grounding of the US military ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means
"long reef exposed at low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll and the Jessie Beazley Reef, a smaller coral structure about 20 kilometers north of the atolls. The reefs of
Tubbataha and Jessie Beazley are considered part of Cagayancillo, a remote island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President
Corazon C. Aquino on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of
Puerto Princesa City, Tubbataha lies at the heart of the Coral Triangle, the global center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization
(UNESCO) as a World Heritage Site. It was recognized as one of the Philippines' oldest ecosystems, containing
excellent examples of pristine reefs and a high diversity of marine life. The 97,030-hectare protected marine park is
also an important habitat for internationally threatened and endangered marine species. UNESCO cited Tubbataha's

outstanding universal value as an important and significant natural habitat for in situ conservation of biological
diversity; an example representing significant on-going ecological and biological processes; and an area of
exceptional natural beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs
Natural Park (TRNP) Act of 2009" "to ensure the protection and conservation of the globally significant economic,
biological, sociocultural, educational and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment
of present and future generations." Under the "no-take" policy, entry into the waters of TRNP is strictly regulated and
many human activities are prohibited and penalized or fined, including fishing, gathering, destroying and disturbing
the resources within the TRNP. The law likewise created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US
Embassy in the Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters
of the Philippines and to arrive at the port of Subic Bay for the purpose of routine ship replenishment, maintenance,
and crew liberty."4 On January 6, 2013, the ship left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after
a brief stop for fuel in Okinawa, Japan.
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On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On
January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South
Shoal of the Tubbataha Reefs, about 80 miles east-southeast of Palawan. No cine was injured in the incident, and
there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department
of Foreign Affairs (DFA) on February 4, "reiterated his regrets over the grounding incident and assured Foreign
Affairs Secretazy Albert F. del Rosario that the United States will provide appropriate compensation for damage to
the reef caused by the ship."6 By March 30, 2013, the US Navy-led salvage team had finished removing the last
piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective
sector/organization and others, including minors or generations yet unborn, filed the present petition agairtst Scott
H. Swift in his capacity as Commander of the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine Corps Forces, Pacific and Balikatan 2013 Exercises
Co-Director ("US respondents"); President Benigno S. Aquino III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive Secretary Paquito Ochoa,
Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department of
Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command,
AFP), Admiral Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista
(Philippine Coast Guard-Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and
continue to cause environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan,
Guimaras, Iloilo, Negros Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which
events violate their constitutional rights to a balanced and healthful ecology. They also seek a directive from this
Court for the institution of civil, administrative and criminal suits for acts committed in violation of environmental laws
and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067:
unauthorized entry (Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement
officer (Section 30); damages to the reef (Section 20); and destroying and disturbing resources (Section 26[g]).
Furthermore, petitioners assail certain provisions of the Visiting Forces Agreement (VFA) which they want this Court
to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view
of the foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this
petition a Temporary Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the
Guardian grounding incident;
b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear
guidelines, duties, and liability schemes for breaches of those duties, and require Respondents to assume
responsibility for prior and future environmental damage in general, and environmental damage under the
Visiting Forces Agreement in particular.
d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited
commercial activities by fisherfolk and indigenous communities near or around the TRNP but away from the
damaged site and an additional buffer zone;
2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to
forthwith negotiate with the United States representatives for the appropriate agreement on [environmental
guidelines and environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal proceedings
against erring officers and individuals to the full extent of the law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring U.S.
personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims
for damages caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to
other States, and damages for personal injury or death, if such had been the case;
e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all
cases, wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage plan
or plans, including cleanup plans covering the damaged area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local
Government Code and R.A. 10067;
i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund
defined under Section 17 of RA 10067 as a bona .fide gesture towards full reparations;
j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the
Guardian in light of Respondents' experience in the Port Royale grounding in 2009, among other similar
grounding incidents;
k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and
accountability such environmental damage assessment, valuation, and valuation methods, in all stages of
negotiation;
l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of
Environment and Natural Resources to review the Visiting Forces Agreement and the Mutual Defense Treaty
to consider whether their provisions allow for the exercise of erga omnes rights to a balanced and healthful
ecology and for damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged
areas of TRNP;
o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting Forces
Agreement unconstitutional for violating equal protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the land under Section 2, Article II, of the Philippine

Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and
equitable under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion for early
resolution and motion to proceed ex parte against the US respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production
orders, respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have
become fait accompli as the salvage operations on the USS Guardian were already completed; (2) the petition is
defective in form and substance; (3) the petition improperly raises issues involving the VFA between the Republic of
the Philippines and the United States of America; and ( 4) the determination of the extent of responsibility of the US
Government as regards the damage to the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's personal
and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance."11 However, the rule on standing is a procedural
matter which this Court has relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers and legislators when
the public interest so requires, such as when the subject matter of the controversy is of transcendental importance,
of overreaching significance to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our constitutional history, is solemnly incorporated in the fundamental
law." We declared that the right to a balanced and healthful ecology need not be written in the Constitution for it is
assumed, like other civil and polittcal rights guaranteed in the Bill of Rights, to exist from the inception of mankind
and it is an issue of transcendental importance with intergenerational implications. Such right carries with it the
correlative duty to refrain from impairing the environment.14
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On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do
ordinary citizens have legal standing to sue for the enforcement of environmental rights, they can do so in
representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty
in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and utilization be equitably
accessible to the present a:: well as future generations. Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full 1:njoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for the generations to come.15 (Emphasis supplied.)
The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen
suits in the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans are
stewards of nature."16
Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit any pleading or manifestation in this case.
The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State,17

is expressly provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,18 we discussed the principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law
of our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the generally accepted principles of international law
under the doctrine of incorporation. Under this doctrine, as accepted by the majority of states, such principles are
deemed incorporated in the law of every civilized state as a condition and consequence of its membership in the
society of nations. Upon its admission to such society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that
''there can be no legal right against the authority which makes the law on which the right depends." [Kawanakoa v.
Polybank, 205 U.S. 349] There are other practical reasons for the enforcement of the doctrine. In the case of the
foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in
parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A
contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations." [De Haber v.
Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy
the same,. such as the appropriation of the amount needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has not been formally impleaded. [Garcia v. Chief of Staff, 16
SCRA 120] In such a situation, the state may move to dismiss the comp.taint on the ground that it has been filed
without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.
In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law then closely identified with the personal immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing
a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet imperium
-that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad
terms, is that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy
the award, such as the appropriation of the amount needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not been formally impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and
was eventually dismissed from his employment when he was charged in court for violation of R.A. No. 6425. In a
complaint for damages filed by the said employee against the military officers, the latter moved to dismiss the case
on the ground that the suit was against the US Government which had not given its consent. The RTC denied the
motion but on a petition for certiorari and prohibition filed before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were acting in the exercise of their official functions when

they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. It
follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts
imputable to their principal, which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from being sued in the courts of another State without
the former's consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and
governmental acts (Jure imperil") from private, commercial and proprietary acts (Jure gestionis). Under the
restrictive rule of State immunity, State immunity extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs.24
In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:
It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. : "Inasmuch as the State authorizes only legal acts by its officers,
unauthorized acts of government officials or officers are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director of a State department on the ground that, while claiming
to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional
act or under an assumption of authority which he does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its consent." The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.
xxxx
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply
and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are
sued in their individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, or
beyond the scope of his authority or jurisdiction.26 (Emphasis supplied.) In this case, the US respondents were sued
in their official capacity as commanding officers of the US Navy who had control and supervision over the USS
Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on
the TRNP was committed while they we:re performing official military duties. Considering that the satisfaction of a
judgment against said officials will require remedial actions and appropriation of funds by the US government, the
suit is deemed to be one against the US itself. The principle of State immunity therefore bars the exercise of
jurisdiction by this Court over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in
this case, when its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP
reef system, brings the matter within the ambit of Article 31 of the United Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they fail to comply with the rules
and regulations of the coastal State regarding passage through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing
policy the US considers itself bound by customary international rules on the "traditional uses of the oceans" as
codified in UNCLOS, as can be gleaned from previous declarations by former Presidents Reagan and Clinton, and
the US judiciary in the case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the
uses of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the relations of states with respect to the uses of the oceans."28 The
UNCLOS is a multilateral treaty which was opened for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on November 16, 1994 upon the submission of the 60th
ratification.
The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and
the principle of freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of
the oldest customary principles of international law.30 The UNCLOS gives to the coastal State sovereign rights in
varying degrees over the different zones of the sea which are: 1) internal waters, 2) territorial sea, 3) contiguous

zone, 4) exclusive economic zone, and 5) the high seas. It also gives coastal States more or less jurisdiction over
foreign vessels depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the
UNCLOS and other rules of international law. Such sovereignty extends to the air space over the territorial sea as
well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the
following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of the coastal State
If any warship does not comply with the laws and regulations of the coastal State concerning passage through the
territorial sea and disregards any request for compliance therewith which is made to it, the coastal State may require
it to leave the territorial sea immediately.
Article 31
Responsibility of the flag State for damage caused by a warship
or other government ship operated for non-commercial purposes
The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the
non-compliance by a warship or other government ship operated for non-commercial purposes with the laws and
regulations of the coastal State concerning passage through the territorial sea or with the provisions of this
Convention or other rules of international law.
Article 32
Immunities of warships and other government ships operated for non-commercial purposes
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects
the immunities of warships and other government ships operated for non-commercial purposes. (Emphasis
supplied.) A foreign warship's unauthorized entry into our internal waters with resulting damage to marine resources
is one situation in which the above provisions may apply. But what if the offending warship is a non-party to the
UNCLOS, as in this case, the US?
An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to revise the objection.able provisions. The revisions
satisfied the Clinton administration, which signed the revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI implementing agreement to the Senate requesting its
advice and consent. Despite consistent support from President Clinton, each of his successors, and an ideologically
diverse array of stakeholders, the Senate has since withheld the consent required for the President to internationally
bind the United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses,
its progress continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in
international institutions. Most recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest priorities. This did not occur, and no Senate action has
been taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the
US will "recognize the rights of the other , states in the waters off their coasts, as reflected in the convention
[UNCLOS], so long as the rights and freedom of the United States and others under international law are recognized
by such coastal states", and President Clinton's reiteration of the US policy "to act in a manner consistent with its
[UNCLOS] provisions relating to traditional uses of the oceans and to encourage other countries to do likewise."
Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy, the US 'recognize[s] the rights
of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason to expect it to
recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was

centered on its disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans
and deep seabed commonly owned by mankind," pointing out that such "has nothing to do with its [the US']
acceptance of customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of
the UNCLOS, as shown by the following statement posted on its official website:
The Convention is in the national interest of the United States because it establishes stable maritime zones,
including a maximum outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea
lanes passage rights; works against "jurisdictiomtl creep" by preventing coastal nations from expanding their own
maritime zones; and reaffirms sovereign immunity of warships, auxiliaries anJ government aircraft.
xxxx
Economically, accession to the Convention would support our national interests by enhancing the ability of the US to
assert its sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the
Law of the Sea Convention that first established the concept of a maritime Exclusive Economic Zone out to 200
nautical miles, and recognized the rights of coastal states to conserve and manage the natural resources in this
Zone.35
We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect
the US to bear "international responsibility" under Art. 31 in connection with the USS Guardian grounding which
adversely affected the Tubbataha reefs. Indeed, it is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to preserve our vital marine resources, would shirk from its
obligation to compensate the damage caused by its warship while transiting our internal waters. Much less can we
comprehend a Government exercising leadership in international affairs, unwilling to comply with the UNCLOS
directive for all nations to cooperate in the global task to protect and preserve the marine environment as provided in
Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent
international organizations, in formulating and elaborating international rules, standards and recommended practices
and procedures consistent with this Convention, for the protection and preservation of the marine environment,
taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea,
the flag States shall be required to leave the territorial '::;ea immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by their warships or any other government vessel
operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes
in the US under which agencies of the US have statutorily waived their immunity to any action. Even under the
common law tort claims, petitioners asseverate that the US respondents are liable for negligence, trespass and
nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines
to promote "common security interests" between the US and the Philippines in the region. It 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.36 The invocation of US federal tort laws and even common law is
thus improper considering that it is the VF A which governs disputes involving US military ships and crew navigating
Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil
actions such as the present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17,
Rule 7 of the Rules that a criminal case against a person charged with a violation of an environmental law is to be
filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan shall not

preclude the filing of separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be found responsible for the grounding of the USS Guardian,
would be premature and beyond the province of a petition for a writ of Kalikasan. We also find it unnecessary at this
point to determine whether such waiver of State immunity is indeed absolute. In the same vein, we cannot grant
damages which have resulted from the violation of environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No. 10067, in a separate civil suit or that deemed instituted
with the criminal action charging the same violation of an environmental law.37
Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance
of a duty in violation of environmental laws resulting in environmental destruction or damage;
(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to
individual petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had already been accomplished when petitioners sought
recourse from this Court. But insofar as the directives to Philippine respondents to protect and rehabilitate the coral
reef stn icture and marine habitat adversely affected by the grounding incident are concerned, petitioners are
entitled to these reliefs notwithstanding the completion of the removal of the USS Guardian from the coral reef.
However, we are mindful of the fact that the US and Philippine governments both expressed readiness to negotiate
and discuss the matter of compensation for the damage caused by the USS Guardian. The US Embassy has also
declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.
Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are available for the consideration of the parties, and which dispute
resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by
their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall
refer the case to the clerk of court or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to
mediation.
The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference
for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and
they shall remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may
issue a consent decree approving the agreement between the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in
accordance with law at any stage of the proceedings before rendition of judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government was reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the grounding.38
To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the
USS Guardian grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary
scientific team which will "initiate discussions with the Government of the Philippines to review coral reef
rehabilitation options in Tubbataha, based on assessments by Philippine-based marine scientists." The US team
intends to "help assess damage and remediation options, in coordination with the Tubbataha Management Office,
appropriate Philippine government entities, non-governmental organizations, and scientific experts from Philippine
universities."39
A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be
obtained under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall
include the protection, preservation or rehabilitation of the environment and the payment of attorney's fees, costs of
suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration
of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.
1wphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and
rehabilitation measures through diplomatic channels. Resolution of these issues impinges on our relations with
another State in the context of common security interests under the VFA. It is settled that "[t]he conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislative-"the political" -departments of the government, and the propriety of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision."40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and
to nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government. The VF A being a valid and binding agreement, the
parties are required as a matter of international law to abide by its terms and provisions.42 The present petition
under the Rules is not the proper remedy to assail the constitutionality of its provisions. WHEREFORE, the petition
for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5

September 17, 1945

CO KIM CHAM (alias CO KIM CHAM), petitioner,

vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance of Manila, respondents.1
Marcelino Lontok for petitioner.
P. A. Revilla for respondent Valdez Tan Keh.
Respondent Judge Dizon in his own behalf.
FERIA, J.:
This petition for mandamus in which petitioner prays that the respondent judge of the lower court be ordered to
continue the proceedings in civil case No. 3012 of said court, which were initiated under the regime of the so-called
Republic of the Philippines established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said case on the ground that
the proclamation issued on October 23, 1944, by General Douglas MacArthur had the effect of invalidating and
nullifying all judicial proceedings and judgements of the court of the Philippines under the Philippine Executive
Commission and the Republic of the Philippines established during the Japanese military occupation, and that,
furthermore, the lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in
the courts of the defunct Republic of the Philippines in the absence of an enabling law granting such authority. And
the same respondent, in his answer and memorandum filed in this Court, contends that the government established
in the Philippines during the Japanese occupation were no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on the next day their
Commander in Chief proclaimed "the Military Administration under law over the districts occupied by the Army." In
said proclamation, it was also provided that "so far as the Military Administration permits, all the laws now in force in
the Commonwealth, as well as executive and judicial institutions, shall continue to be effective for the time being as
in the past," and "all public officials shall remain in their present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine Executive Commission was
organized by Order No. 1 issued on January 23, 1942, by the Commander in Chief of the Japanese Forces in the
Philippines, and Jorge B. Vargas, who was appointed Chairman thereof, was instructed to proceed to the immediate
coordination of the existing central administrative organs and judicial courts, based upon what had existed therefore,
with approval of the said Commander in Chief, who was to exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative organization, issued Executive
Orders Nos. 1 and 4, dated January 30 and February 5, 1942, respectively, in which the Supreme Court, Court of
Appeals, Courts of First Instance, and the justices of the peace and municipal courts under the Commonwealth were
continued with the same jurisdiction, in conformity with the instructions given to the said Chairman of the Executive
Commission by the Commander in Chief of Japanese Forces in the Philippines in the latter's Order No. 3 of
February 20, 1942, concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided that "activities of the
administration organs and judicial courts in the Philippines shall be based upon the existing statutes, orders,
ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no substantial change was
effected thereby in the organization and jurisdiction of the different courts that functioned during the Philippine
Executive Commission, and in the laws they administered and enforced.

On October 23, 1944, a few days after the historic landing in Leyte, General Douglas MacArthur issued a
proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only government having legal and valid jurisdiction over the
people in areas of the Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the Philippines and the
regulations promulgated pursuant thereto are in full force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation
and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27, 1945, General MacArthur, on
behalf of the Government of the United States, solemnly declared "the full powers and responsibilities under the
Constitution restored to the Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to be resolved in the present
case may be reduced to the following:(1) Whether the judicial acts and proceedings of the court existing in the
Philippines under the Philippine Executive Commission and the Republic of the Philippines were good and valid and
remained so even after the liberation or reoccupation of the Philippines by the United States and Filipino forces;
(2)Whether the proclamation issued on October 23, 1944, by General Douglas MacArthur, Commander in Chief of
the United States Army, in which he declared "that all laws, regulations and processes of any of the government in
the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the
Philippines free of enemy occupation and control," has invalidated all judgements and judicial acts and proceedings
of the said courts; and (3) If the said judicial acts and proceedings have not been invalidated by said proclamation,
whether the present courts of the Commonwealth, which were the same court existing prior to, and continued
during, the Japanese military occupation of the Philippines, may continue those proceedings pending in said courts
at the time the Philippines were reoccupied and liberated by the United States and Filipino forces, and the
Commonwealth of the Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the rules of international law the
judicial acts and proceedings of the courts established in the Philippines under the Philippine Executive Commission
and the Republic of the Philippines were good and valid and remained good and valid even after the liberation or
reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of the legislative, executive, and
judicial departments of a de facto government are good and valid. The question to be determined is whether or not
the governments established in these Islands under the names of the Philippine Executive Commission and
Republic of the Philippines during the Japanese military occupation or regime were de facto governments. If they
were, the judicial acts and proceedings of those governments remain good and valid even after the liberation or
reoccupation of the Philippines by the American and Filipino forces.
There are several kinds of de facto governments. The first, or government de facto in a proper legal sense, is that
government that gets possession and control of, or usurps, by force or by the voice of the majority, the rightful legal
governments and maintains itself against the will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector. The second is that which is established and
maintained by military forces who invade and occupy a territory of the enemy in the course of war, and which is
denominated a government of paramount force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico, by the troops of the
United States. And the third is that established as an independent government by the inhabitants of a country who
rise in insurrection against the parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and third kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United States, in the case of
Thorington vs. Smith (8 Wall., 1), said: "But there is another description of government, called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its
distinguishing characteristics are (1), that its existence is maintained by active military power with the territories, and
against the rightful authority of an established and lawful government; and (2), that while it exists it necessarily be
obeyed in civil matters by private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of the rightful government.
Actual governments of this sort are established over districts differing greatly in extent and conditions. They are

usually administered directly by military authority, but they may be administered, also, civil authority, supported more
or less directly by military force. . . . One example of this sort of government is found in the case of Castine, in Mine,
reduced to British possession in the war of 1812 . . . U. S. vs. Rice (4 Wheaton, 253). A like example is found in the
case of Tampico, occupied during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and regular governments at war
with the country of which the territory so possessed was part."
The powers and duties of de facto governments of this description are regulated in Section III of the Hague
Conventions of 1907, which is a revision of the provisions of the Hague Conventions of 1899 on the same subject of
said Section III provides "the authority of the legislative power having actually passed into the hands of the
occupant, the latter shall take steps in his power to reestablish and insure, as far as possible, public order and
safety, while respecting, unless absolutely prevented, the laws in force in the country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the right and is burdened with
the duty to insure public order and safety during his military occupation, he possesses all the powers of a de facto
government, and he can suspended the old laws and promulgate new ones and make such changes in the old as
he may see fit, but he is enjoined to respect, unless absolutely prevented by the circumstances prevailing in the
occupied territory, the municipal laws in force in the country, that is, those laws which enforce public order and
regulate social and commercial life of the country. On the other hand, laws of a political nature or affecting political
relations, such as, among others, the right of assembly, the right to bear arms, the freedom of the press, and the
right to travel freely in the territory occupied, are considered as suspended or in abeyance during the military
occupation. Although the local and civil administration of justice is suspended as a matter of course as soon as a
country is militarily occupied, it is not usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering justice; and judges and other judicial
officers are kept in their posts if they accept the authority of the belligerent occupant or are required to continue in
their positions under the supervision of the military or civil authorities appointed, by the Commander in Chief of the
occupant. These principles and practice have the sanction of all publicists who have considered the subject, and
have been asserted by the Supreme Court and applied by the President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on International Law (Vol. 2, p. 444): "The
right of one belligerent to occupy and govern the territory of the enemy while in its military possession, is one of the
incidents of war, and flows directly from the right to conquer. We, therefore, do not look to the Constitution or political
institutions of the conqueror, for authority to establish a government for the territory of the enemy in his possession,
during its military occupation, nor for the rules by which the powers of such government are regulated and limited.
Such authority and such rules are derived directly from the laws war, as established by the usage of the of the world,
and confirmed by the writings of publicists and decisions of courts in fine, from the law of nations. . . . The
municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military
occupation, excepts so far as they are suspended or changed by the acts of conqueror. . . . He, nevertheless, has all
the powers of a de facto government, and can at his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied territory, which were later embodied
in the said Hague Conventions, President McKinley, in his executive order to the Secretary of War of May 19,1898,
relating to the occupation of the Philippines by United States forces, said in part: "Though the powers of the military
occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the
municipal laws of the conquered territory, such as affect private rights of person and property and provide for the
punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of
things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually
abrogated, but are allowed to remain in force and to be administered by the ordinary tribunals, substantially as they
were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present
occasion. The judges and the other officials connected with the administration of justice may, if they accept the
authority of the United States, continue to administer the ordinary law of the land as between man and man under
the supervision of the American Commander in Chief." (Richardson's Messages and Papers of President, X, p.
209.)
As to "de facto" government of the third kind, the Supreme Court of the United States, in the same case of
Thorington vs. Smith, supra, recognized the government set up by the Confederate States as a de facto
government. In that case, it was held that "the central government established for the insurgent States differed from
the temporary governments at Castine and Tampico in the circumstance that its authority did no originate in lawful
acts of regular war; but it was not, on the account, less actual or less supreme. And we think that it must be classed
among the governments of which these are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United States, discussing the validity
of the acts of the Confederate States, said: "The same general form of government, the same general laws for the
administration of justice and protection of private rights, which had existed in the States prior to the rebellion,

remained during its continuance and afterwards. As far as the Acts of the States do not impair or tend to impair the
supremacy of the national authority, or the just rights of citizens under the Constitution, they are, in general, to be
treated as valid and binding. As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a
state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular
administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property
protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property
regulated, precisely as in the time of peace. No one, that we are aware of, seriously questions the validity of judicial
or legislative Acts in the insurrectionary States touching these and kindered subjects, where they were not hostile in
their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of
citizens under the Constitution'. The same doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That what occured or was done in
respect of such matters under the authority of the laws of these local de facto governments should not be
disregarded or held to be invalid merely because those governments were organized in hostility to the Union
established by the national Constitution; this, because the existence of war between the United States and the
Confederate States did not relieve those who are within the insurrectionary lines from the necessity of civil
obedience, nor destroy the bonds of society nor do away with civil government or the regular administration of the
laws, and because transactions in the ordinary course of civil society as organized within the enemy's territory
although they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized
to effect a dissolution of the Union, were without blame 'except when proved to have been entered into with actual
intent to further invasion or insurrection:'" and "That judicial and legislative acts in the respective states composing
the so-called Confederate States should be respected by the courts if they were not hostile in their purpose or mode
of enforcement to the authority of the National Government, and did not impair the rights of citizens under the
Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which was organized by Order No.
1, issued on January 23, 1942, by the Commander of the Japanese forces, was a civil government established by
the military forces of occupation and therefore a de facto government of the second kind. It was not different from
the government established by the British in Castine, Maine, or by the United States in Tampico, Mexico. As Halleck
says, "The government established over an enemy's territory during the military occupation may exercise all the
powers given by the laws of war to the conqueror over the conquered, and is subject to all restrictions which that
code imposes. It is of little consequence whether such government be called a military or civil government. Its
character is the same and the source of its authority the same. In either case it is a government imposed by the laws
of war, and so far it concerns the inhabitants of such territory or the rest of the world, those laws alone determine the
legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive Commission was a civil and not
a military government and was run by Filipinos and not by Japanese nationals, is of no consequence. In 1806, when
Napoleon occupied the greater part of Prussia, he retained the existing administration under the general direction of
a french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same way, the Duke of Willington, on invading
France, authorized the local authorities to continue the exercise of their functions, apparently without appointing an
English superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they invaded France in
1870, appointed their own officials, at least in Alsace and Lorraine, in every department of administration and of
every rank. (Calvo, pars. 2186-93; Hall, International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a sovereign state independent
from any other government by the Filipino people, was, in truth and reality, a government established by the
belligerent occupant or the Japanese forces of occupation. It was of the same character as the Philippine Executive
Commission, and the ultimate source of its authority was the same the Japanese military authority and
government. As General MacArthur stated in his proclamation of October 23, 1944, a portion of which has been
already quoted, "under enemy duress, a so-called government styled as the 'Republic of the Philippines' was
established on October 14, 1943, based upon neither the free expression of the people's will nor the sanction of the
Government of the United States." Japan had no legal power to grant independence to the Philippines or transfer
the sovereignty of the United States to, or recognize the latent sovereignty of, the Filipino people, before its military
occupation and possession of the Islands had matured into an absolute and permanent dominion or sovereignty by
a treaty of peace or other means recognized in the law of nations. For it is a well-established doctrine in
International Law, recognized in Article 45 of the Hauge Conventions of 1907 (which prohibits compulsion of the
population of the occupied territory to swear allegiance to the hostile power), the belligerent occupation, being
essentially provisional, does not serve to transfer sovereignty over the territory controlled although the de jure
government is during the period of occupancy deprived of the power to exercise its rights as such. (Thirty Hogshead
of Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page, 9 Howard, 603;
Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of the Philippines was a scheme contrived by
Japan to delude the Filipino people into believing in the apparent magnanimity of the Japanese gesture of
transferring or turning over the rights of government into the hands of Filipinos. It was established under the
mistaken belief that by doing so, Japan would secure the cooperation or at least the neutrality of the Filipino people
in her war against the United States and other allied nations.

Indeed, even if the Republic of the Philippines had been established by the free will of the Filipino who, taking
advantage of the withdrawal of the American forces from the Islands, and the occupation thereof by the Japanese
forces of invasion, had organized an independent government under the name with the support and backing of
Japan, such government would have been considered as one established by the Filipinos in insurrection or rebellion
against the parent state or the Unite States. And as such, it would have been a de facto government similar to that
organized by the confederate states during the war of secession and recognized as such by the by the Supreme
Court of the United States in numerous cases, notably those of Thorington vs. Smith, Williams vs. Bruffy, and Badly
vs. Hunter, above quoted; and similar to the short-lived government established by the Filipino insurgents in the
Island of Cebu during the Spanish-American war, recognized as a de facto government by the Supreme Court of the
United States in the case of McCleod vs. United States (299 U. S., 416). According to the facts in the last-named
case, the Spanish forces evacuated the Island of Cebu on December 25, 1898, having first appointed a provisional
government, and shortly afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was surrendered to the United
States on February 22, 1898. And the said Supreme Court held in that case that "such government was of the class
of de facto governments described in I Moore's International Law Digest, S 20, . . . 'called also by publicists a
government de facto, but which might, perhaps, be more aptly denominated a government of paramount force . . '."
That is to say, that the government of a country in possession of belligerent forces in insurrection or rebellion against
the parent state, rests upon the same principles as that of a territory occupied by the hostile army of an enemy at
regular war with the legitimate power.
The governments by the Philippine Executive Commission and the Republic of the Philippines during the Japanese
military occupation being de facto governments, it necessarily follows that the judicial acts and proceedings of the
courts of justice of those governments, which are not of a political complexion, were good and valid, and, by virtue of
the well-known principle of postliminy (postliminium) in international law, remained good and valid after the liberation
or reoccupation of the Philippines by the American and Filipino forces under the leadership of General Douglas
MacArthur. According to that well-known principle in international law, the fact that a territory which has been
occupied by an enemy comes again into the power of its legitimate government of sovereignty, "does not, except in
a very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his
competence to do. Thus judicial acts done under his control, when they are not of a political complexion,
administrative acts so done, to the extent that they take effect during the continuance of his control, and the various
acts done during the same time by private persons under the sanction of municipal law, remain good. Were it
otherwise, the whole social life of a community would be paralyzed by an invasion; and as between the state and
the individuals the evil would be scarcely less, it would be hard for example that payment of taxes made under
duress should be ignored, and it would be contrary to the general interest that the sentences passed upon criminals
should be annulled by the disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.)
And when the occupation and the abandonment have been each an incident of the same war as in the present
case, postliminy applies, even though the occupant has acted as conqueror and for the time substituted his own
sovereignty as the Japanese intended to do apparently in granting independence to the Philippines and establishing
the so-called Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of a political complexion, are
and remain valid after reoccupation of a territory occupied by a belligerent occupant, is confirmed by the
Proclamation issued by General Douglas MacArthur on October 23, 1944, which declares null and void all laws,
regulations and processes of the governments established in the Philippines during the Japanese occupation, for it
would not have been necessary for said proclamation to abrogate them if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any other government" as used
in the above-quoted proclamation of General Douglas MacArthur of October 23, 1944 that is, whether it was the
intention of the Commander in Chief of the American Forces to annul and void thereby all judgments and judicial
proceedings of the courts established in the Philippines during the Japanese military occupation.
The phrase "processes of any other government" is broad and may refer not only to the judicial processes, but also
to administrative or legislative, as well as constitutional, processes of the Republic of the Philippines or other
governmental agencies established in the Islands during the Japanese occupation. Taking into consideration the fact
that, as above indicated, according to the well-known principles of international law all judgements and judicial
proceedings, which are not of a political complexion, of the de facto governments during the Japanese military
occupation were good and valid before and remained so after the occupied territory had come again into the power
of the titular sovereign, it should be presumed that it was not, and could not have been, the intention of General
Douglas MacArthur, in using the phrase "processes of any other government" in said proclamation, to refer to
judicial processes, in violation of said principles of international law. The only reasonable construction of the said
phrase is that it refers to governmental processes other than judicial processes of court proceedings, for according
to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute ought never to be construed
to violate the law of nations if any other possible construction remains."

It is true that the commanding general of a belligerent army of occupation, as an agent of his government, may not
unlawfully suspend existing laws and promulgate new ones in the occupied territory, if and when the exigencies of
the military occupation demand such action. But even assuming that, under the law of nations, the legislative power
of a commander in chief of military forces who liberates or reoccupies his own territory which has been occupied by
an enemy, during the military and before the restoration of the civil regime, is as broad as that of the commander in
chief of the military forces of invasion and occupation (although the exigencies of military reoccupation are evidently
less than those of occupation), it is to be presumed that General Douglas MacArthur, who was acting as an agent or
a representative of the Government and the President of the United States, constitutional commander in chief of the
United States Army, did not intend to act against the principles of the law of nations asserted by the Supreme Court
of the United States from the early period of its existence, applied by the Presidents of the United States, and later
embodied in the Hague Conventions of 1907, as above indicated. It is not to be presumed that General Douglas
MacArthur, who enjoined in the same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines
full respect and obedience to the Constitution of the Commonwealth of the Philippines," should not only reverse the
international policy and practice of his own government, but also disregard in the same breath the provisions of
section 3, Article II, of our Constitution, which provides that "The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted principles of international law as part of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would result, and great public
interests would be endangered and sacrificed, for disputes or suits already adjudged would have to be again settled
accrued or vested rights nullified, sentences passed on criminals set aside, and criminals might easily become
immune for evidence against them may have already disappeared or be no longer available, especially now that
almost all court records in the Philippines have been destroyed by fire as a consequence of the war. And it is
another well-established rule of statutory construction that where great inconvenience will result from a particular
construction, or great public interests would be endangered or sacrificed, or great mischief done, such construction
is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law,
unless required by clear and unequivocal words. (25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his representatives who reoccupies a
territory occupied by an enemy, may set aside or annul all the judicial acts or proceedings of the tribunals which the
belligerent occupant had the right and duty to establish in order to insure public order and safety during military
occupation, would be sufficient to paralyze the social life of the country or occupied territory, for it would have to be
expected that litigants would not willingly submit their litigation to courts whose judgements or decisions may
afterwards be annulled, and criminals would not be deterred from committing crimes or offenses in the expectancy
that they may escaped the penalty if judgments rendered against them may be afterwards set aside.
That the proclamation has not invalidated all the judgements and proceedings of the courts of justice during the
Japanese regime, is impliedly confirmed by Executive Order No. 37, which has the force of law, issued by the
President of the Philippines on March 10, 1945, by virtue of the emergency legislative power vested in him by the
Constitution and the laws of the Commonwealth of the Philippines. Said Executive order abolished the Court of
Appeals, and provided "that all case which have heretofore been duly appealed to the Court of Appeals shall be
transmitted to the Supreme Court final decision." This provision impliedly recognizes that the judgments and
proceedings of the courts during the Japanese military occupation have not been invalidated by the proclamation of
General MacArthur of October 23, because the said Order does not say or refer to cases which have been duly
appealed to said court prior to the Japanese occupation, but to cases which had therefore, that is, up to March 10,
1945, been duly appealed to the Court of Appeals; and it is to be presumed that almost all, if not all, appealed cases
pending in the Court of Appeals prior to the Japanese military occupation of Manila on January 2, 1942, had been
disposed of by the latter before the restoration of the Commonwealth Government in 1945; while almost all, if not all,
appealed cases pending on March 10, 1945, in the Court of Appeals were from judgments rendered by the Court of
First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say: "Moreover when it is said that an
occupier's acts are valid and under international law should not be abrogated by the subsequent conqueror, it must
be remembered that no crucial instances exist to show that if his acts should be reversed, any international wrong
would be committed. What does happen is that most matters are allowed to stand by the restored government, but
the matter can hardly be put further than this." (Wheaton, International Law, War, 7th English edition of 1944, p.
245.) And from this quotion the respondent judge "draws the conclusion that whether the acts of the occupant
should be considered valid or not, is a question that is up to the restored government to decide; that there is no rule
of international law that denies to the restored government to decide; that there is no rule of international law that
denies to the restored government the right of exercise its discretion on the matter, imposing upon it in its stead the
obligation of recognizing and enforcing the acts of the overthrown government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of the occupier, such as the
laws, regulations and processes other than judicial of the government established by the belligerent occupant. But in
view of the fact that the proclamation uses the words "processes of any other government" and not "judicial

processes" prisely, it is not necessary to determine whether or not General Douglas MacArthur had power to annul
and set aside all judgments and proceedings of the courts during the Japanese occupation. The question to be
determined is whether or not it was his intention, as representative of the President of the United States, to avoid or
nullify them. If the proclamation had, expressly or by necessary implication, declared null and void the judicial
processes of any other government, it would be necessary for this court to decide in the present case whether or not
General Douglas MacArthur had authority to declare them null and void. But the proclamation did not so provide,
undoubtedly because the author thereof was fully aware of the limitations of his powers as Commander in Chief of
Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they result from the usages
established between civilized nations, the laws of humanity and the requirements of the public of conscience,
constitute or from the law of nations. (Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part
II, p. 61.) Article 43, section III, of the Hague Regulations or Conventions which we have already quoted in
discussing the first question, imposes upon the occupant the obligation to establish courts; and Article 23 (h),
section II, of the same Conventions, which prohibits the belligerent occupant "to declare . . . suspended . . . in a
Court of Law the rights and action of the nationals of the hostile party," forbids him to make any declaration
preventing the inhabitants from using their courts to assert or enforce their civil rights. (Decision of the Court of
Appeals of England in the case of Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is
required to establish courts of justice in the territory occupied, and forbidden to prevent the nationals thereof from
asserting or enforcing therein their civil rights, by necessary implication, the military commander of the forces of
liberation or the restored government is restrained from nullifying or setting aside the judgments rendered by said
courts in their litigation during the period of occupation. Otherwise, the purpose of these precepts of the Hague
Conventions would be thwarted, for to declare them null and void would be tantamount to suspending in said courts
the right and action of the nationals of the territory during the military occupation thereof by the enemy. It goes
without saying that a law that enjoins a person to do something will not at the same time empower another to undo
the same. Although the question whether the President or commanding officer of the United States Army has
violated restraints imposed by the constitution and laws of his country is obviously of a domestic nature, yet, in
construing and applying limitations imposed on the executive authority, the Supreme Court of the United States, in
the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from general rules of international
law and from fundamental principles known wherever the American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer in command of the forces of
the United States in South Carolina after the end of the Civil War, wholly annulling a decree rendered by a court of
chancery in that state in a case within its jurisdiction, was declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14), which defined the powers and
duties of military officers in command of the several states then lately in rebellion. In the course of its decision the
court said; "We have looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very large
governmental powers to the military commanders designated, within the States committed respectively to their
jurisdiction; but we have found nothing to warrant the order here in question. . . . The clearest language would be
necessary to satisfy us that Congress intended that the power given by these acts should be so exercised. . . . It
was an arbitrary stretch of authority, needful to no good end that can be imagined. Whether Congress could have
conferred the power to do such an act is a question we are not called upon to consider. It is an unbending rule of law
that the exercise of military power, where the rights of the citizen are concerned, shall never be pushed beyond what
the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4 Taunt., 67; Fabrigas vs. Moysten, 1
Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.) Viewing the subject before us from the standpoint indicated, we hold
that the order was void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944, which declared that "all
laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are
null and void without legal effect in areas of the Philippines free of enemy occupation and control," has not
invalidated the judicial acts and proceedings, which are not a political complexion, of the courts of justice in the
Philippines that were continued by the Philippine Executive Commission and the Republic of the Philippines during
the Japanese military occupation, and that said judicial acts and proceedings were good and valid before and now
good and valid after the reoccupation of liberation of the Philippines by the American and Filipino forces.
3. The third and last question is whether or not the courts of the Commonwealth, which are the same as those
existing prior to, and continued during, the Japanese military occupation by the Philippine Executive Commission
and by the so-called Republic of the Philippines, have jurisdiction to continue now the proceedings in actions
pending in said courts at the time the Philippine Islands were reoccupied or liberated by the American and Filipino
forces, and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial administration is suspended as a matter of
course as soon as military occupation takes place, in practice the invader does not usually take the administration of
justice into his own hands, but continues the ordinary courts or tribunals to administer the laws of the country which

he is enjoined, unless absolutely prevented, to respect. As stated in the above-quoted Executive Order of President
McKinley to the Secretary of War on May 19, 1898, "in practice, they (the municipal laws) are not usually abrogated
but are allowed to remain in force and to be administered by the ordinary tribunals substantially as they were before
the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion." And
Taylor in this connection says: "From a theoretical point of view it may be said that the conqueror is armed with the
right to substitute his arbitrary will for all preexisting forms of government, legislative, executive and judicial. From
the stand-point of actual practice such arbitrary will is restrained by the provision of the law of nations which
compels the conqueror to continue local laws and institution so far as military necessity will permit." (Taylor,
International Public Law, p.596.) Undoubtedly, this practice has been adopted in order that the ordinary pursuits and
business of society may not be unnecessarily deranged, inasmuch as belligerent occupation is essentially
provisional, and the government established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the Japanese Forces
proclaimed on January 3, 1942, when Manila was occupied, the military administration under martial law over the
territory occupied by the army, and ordered that "all the laws now in force in the Commonwealth, as well as
executive and judicial institutions, shall continue to be affective for the time being as in the past," and "all public
officials shall remain in their present post and carry on faithfully their duties as before." When the Philippine
Executive Commission was organized by Order No. 1 of the Japanese Commander in Chief, on January 23, 1942,
the Chairman of the Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court of First Instance, and justices of the peace of
courts, with the same jurisdiction in conformity with the instructions given by the Commander in Chief of the Imperial
Japanese Army in Order No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of the
Philippines was inaugurated, the same courts were continued with no substantial change in organization and
jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese military occupation had been
continued during the Japanese military administration, the Philippine Executive Commission, and the so-called
Republic of the Philippines, it stands to reason that the same courts, which had become reestablished and
conceived of as having in continued existence upon the reoccupation and liberation of the Philippines by virtue of
the principle of postliminy (Hall, International Law, 7th ed., p. 516), may continue the proceedings in cases then
pending in said courts, without necessity of enacting a law conferring jurisdiction upon them to continue said
proceedings. As Taylor graphically points out in speaking of said principles "a state or other governmental entity,
upon the removal of a foreign military force, resumes its old place with its right and duties substantially unimpaired. .
. . Such political resurrection is the result of a law analogous to that which enables elastic bodies to regain their
original shape upon removal of the external force, and subject to the same exception in case of absolute crushing
of the whole fibre and content." (Taylor, International Public Law, p. 615.)
The argument advanced by the respondent judge in his resolution in support in his conclusion that the Court of First
Instance of Manila presided over by him "has no authority to take cognizance of, and continue said proceedings (of
this case) to final judgment until and unless the Government of the Commonwealth of the Philippines . . . shall have
provided for the transfer of the jurisdiction of the courts of the now defunct Republic of the Philippines, and the
cases commenced and the left pending therein," is "that said courts were a government alien to the Commonwealth
Government. The laws they enforced were, true enough, laws of the Commonwealth prior to Japanese occupation,
but they had become the laws and the courts had become the institutions of Japan by adoption (U.S. vs.
Reiter. 27 F. Cases, No. 16146), as they became later on the laws and institutions of the Philippine Executive
Commission and the Republic of the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and institutions of the country
occupied if continued by the conqueror or occupant, become the laws and the courts, by adoption, of the sovereign
nation that is militarily occupying the territory. Because, as already shown, belligerent or military occupation is
essentially provisional and does not serve to transfer the sovereignty over the occupied territory to the occupant.
What the court said was that, if such laws and institutions are continued in use by the occupant, they become his
and derive their force from him, in the sense that he may continue or set them aside. The laws and institution or
courts so continued remain the laws and institutions or courts of the occupied territory. The laws and the courts of
the Philippines, therefore, did not become, by being continued as required by the law of nations, laws and courts of
Japan. The provision of Article 45, section III, of the Hague Conventions of 1907 which prohibits any compulsion of
the population of occupied territory to swear allegiance to the hostile power, "extends to prohibit everything which
would assert or imply a change made by the invader in the legitimate sovereignty. This duty is neither to innovate in
the political life of the occupied districts, nor needlessly to break the continuity of their legal life. Hence, so far as the
courts of justice are allowed to continue administering the territorial laws, they must be allowed to give their
sentences in the name of the legitimate sovereign " (Westlake, Int. Law, Part II, second ed., p. 102). According to
Wheaton, however, the victor need not allow the use of that of the legitimate government. When in 1870, the
Germans in France attempted to violate that rule by ordering, after the fall of the Emperor Napoleon, the courts of
Nancy to administer justice in the name of the "High German Powers occupying Alsace and Lorraine," upon the

ground that the exercise of their powers in the name of French people and government was at least an implied
recognition of the Republic, the courts refused to obey and suspended their sitting. Germany originally ordered the
use of the name of "High German Powers occupying Alsace and Lorraine," but later offered to allow use of the
name of the Emperor or a compromise. (Wheaton, International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once established continues until
changed by the some competent legislative power. It is not change merely by change of sovereignty." (Joseph H.
Beale, Cases on Conflict of Laws, III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the
same author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131): "There can no break or
interregnum in law. From the time the law comes into existence with the first-felt corporateness of a primitive people
it must last until the final disappearance of human society. Once created, it persists until a change take place, and
when changed it continues in such changed condition until the next change, and so forever. Conquest or
colonization is impotent to bring law to an end; in spite of change of constitution, the law continues unchanged until
the new sovereign by legislative acts creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws which create and confer upon
them their jurisdiction, it is evident that such laws, not being a political nature, are not abrogated by a change of
sovereignty, and continue in force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation
that said laws and courts are expressly continued is not necessary in order that they may continue in force. Such
proclamation, if made, is but a declaration of the intention of respecting and not repealing those laws. Therefore,
even assuming that Japan had legally acquired sovereignty over these Islands, which she had afterwards
transferred to the so-called Republic of the Philippines, and that the laws and the courts of these Islands had
become the courts of Japan, as the said courts of the laws creating and conferring jurisdiction upon them have
continued in force until now, it necessarily follows that the same courts may continue exercising the same
jurisdiction over cases pending therein before the restoration of the Commonwealth Government, unless and until
they are abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government.
As a consequence, enabling laws or acts providing that proceedings pending in one court be continued by or
transferred to another court, are not required by the mere change of government or sovereignty. They are necessary
only in case the former courts are abolished or their jurisdiction so change that they can no longer continue taking
cognizance of the cases and proceedings commenced therein, in order that the new courts or the courts having
jurisdiction over said cases may continue the proceedings. When the Spanish sovereignty in the Philippine Islands
ceased and the Islands came into the possession of the United States, the "Audiencia" or Supreme Court was
continued and did not cease to exist, and proceeded to take cognizance of the actions pending therein upon the
cessation of the Spanish sovereignty until the said "Audiencia" or Supreme Court was abolished, and the Supreme
Court created in Chapter II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending therein upon the change of
sovereignty, until section 65 of the same Act No. 136 abolished them and created in its Chapter IV the present
Courts of First Instance in substitution of the former. Similarly, no enabling acts were enacted during the Japanese
occupation, but a mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was enacted abolishing the civil
jurisdiction of the provost courts created by the military government of occupation in the Philippines during the
Spanish-American War of 1898, the same section 78 provided for the transfer of all civil actions then pending in the
provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of First Instance, or Supreme
Court having jurisdiction over them according to law. And later on, when the criminal jurisdiction of provost courts in
the City of Manila was abolished by section 3 of Act No. 186, the same section provided that criminal cases pending
therein within the jurisdiction of the municipal court created by Act No. 183 were transferred to the latter.
That the present courts as the same courts which had been functioning during the Japanese regime and, therefore,
can continue the proceedings in cases pending therein prior to the restoration of the Commonwealth of the
Philippines, is confirmed by Executive Order No. 37 which we have already quoted in support of our conclusion in
connection with the second question. Said Executive Order provides"(1) that the Court of Appeals created and
established under Commonwealth Act No. 3 as amended, be abolished, as it is hereby abolished," and "(2) that all
cases which have heretofore been duly appealed to the Court of Appeals shall be transmitted to the Supreme Court
for final decision. . . ." In so providing, the said Order considers that the Court of Appeals abolished was the same
that existed prior to, and continued after, the restoration of the Commonwealth Government; for, as we have stated
in discussing the previous question, almost all, if not all, of the cases pending therein, or which had theretofore (that
is, up to March 10, 1945) been duly appealed to said court, must have been cases coming from the Courts of First
Instance during the so-called Republic of the Philippines. If the Court of Appeals abolished by the said Executive
Order was not the same one which had been functioning during the Republic, but that which had existed up to the
time of the Japanese occupation, it would have provided that all the cases which had, prior to and up to that
occupation on January 2, 1942, been dully appealed to the said Court of Appeals shall be transmitted to the
Supreme Court for final decision.

It is, therefore, obvious that the present courts have jurisdiction to continue, to final judgment, the proceedings in
cases, not of political complexion, pending therein at the time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of Manila has jurisdiction to
continue to final judgment the proceedings in civil case No. 3012, which involves civil rights of the parties under the
laws of the Commonwealth Government, pending in said court at the time of the restoration of the said Government;
and that the respondent judge of the court, having refused to act and continue him does a duty resulting from his
office as presiding judge of that court, mandamus is the speedy and adequate remedy in the ordinary course of law,
especially taking into consideration the fact that the question of jurisdiction herein involved does affect not only this
particular case, but many other cases now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue, directed to the respondent
judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the
proceedings in civil case No. 3012 of said court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.

Separate Opinions
DE JOYA, J., concurring:
The principal question involved in this case is the validity of the proceedings held in civil case No. 3012, in the Court
of First Instance of the City of Manila, under the now defunct Philippine Republic, during Japanese occupation; and
the effect on said proceedings of the proclamation of General Douglas MacArthur, dated October 23, 1944. The
decision of this question requires the application of principles of International Law, in connection with the municipal
law in force in this country, before and during Japanese occupation.
Questions of International Law must be decided as matters of general law (Juntington vs. Attril, 146 U.S., 657; 13
Sup. Ct. 224; 36 Law. ed., 1123); and International Law is no alien in this Tribunal, as, under the Constitution of the
Commonwealth of the Philippines, it is a part of the fundamental law of the land (Article II, section 3).
As International Law is an integral part of our laws, it must be ascertained and administered by this Court, whenever
questions of right depending upon it are presented for our determination, sitting as an international as well as a
domestic Tribunal (Kansas vs. Colorado, 185 U.S., 146; 22 Sup. Ct. 552; 46 Law. Ed., 838).
Since International Law is a body of rules actually accepted by nations as regulating their mutual relations, the proof
of the existence of a given rule is to be found in the consent of nations to abide by that rule; and this consent is
evidenced chiefly by the usages and customs of nations, and to ascertain what these usages and customs are, the
universal practice is to turn to the writings of publicists and to the decisions of the highest courts of the different
countries of the world (The Habana, 175 U.S., 677; 20 Sup. Cit., 290; 44 Law. ed., 320).
But while usage is the older and original source of International Law, great international treaties are a later source of
increasing importance, such as The Hague Conventions of 1899 and 1907.
The Hague Conventions of 1899, respecting laws and customs of war on land, expressly declares that:
ARTICLE XLII. Territory is considered occupied when it is actually placed under the authority of the hostile
army.
The occupation applies only to be territory where such authority is established, and in a position to assert
itself.
ARTICLE XLIII. The authority of the legitimate power having actually passed into the hands of the occupant,
the later shall take all steps in his power to reestablish and insure, as far as possible, public order and safety,
while respecting, unless absolutely prevented, the laws in force in the country. (32 Stat. II, 1821.)
The above provisions of the Hague Convention have been adopted by the nations giving adherence to them, among
which is United States of America (32 Stat. II, 1821).
The commander in chief of the invading forces or military occupant may exercise governmental authority, but only
when in actual possession of the enemy's territory, and this authority will be exercised upon principles of
international Law (New Orleans vs. Steamship Co, [1874], 20 Wall., 387; Kelly vs. Sanders [1878], 99 U.S., 441;
MacLeod vs. U.S., 229 U.S. 416; 33 Sup. Ct., 955; 57 Law Ed., 1260; II Oppenheim of International Law, section

EN BANC
[A.M. No. 90-11-2697-CA. June 29, 1992.]

RESOLUTION

LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of

the Court of Appeals dated 14 November 1990.

PADILLA, J :
Petitioner Associate Justice Reynato S. Puno, a member of the Court of
Appeals, wrote a letter dated 14 November 1990 addressed to this Court,
seeking the correction of his seniority ranking in the Court of Appeals.
It appears from the records that petitioner was first appointed Associate
Justice of the Court of Appeals on 20 June 1980 but took his oath of office
for said position only on 29 November 1982, after serving as Assistant
Solicitor General in the Office of the Solicitor General since 1974. 1
On 17 January 1983, the Court of Appeals was reorganized and became the
Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 entitled
"An Act Reorganizing the Judiciary. Appropriating Funds Therefor and For
Other Purposes." 2 Petitioner was appointed Appellate Justice in the First
Special Cases Division of the Intermediate Appellate Court. On 7 November
1984, petitioner accepted an appointment to the government and ceased to
be a member of the Judiciary. 3
The aftermath of the EDSA Revolution in February 1986 brought about a
reorganization of the entire government, including the Judiciary. To effect the
reorganization of the Intermediate Appellate Court and other lower courts, a
Screening Committee was created, with the then Minister of Justice, now
Senator Neptali Gonzales as Chairman and then Solicitor General, now
Philippine Ambassador to the United Nations Sedfrey Ordoez as Vice
Chairman. President Corazon C. Aquino, exercising legislative powers by
virtue of the revolution, issued Executive Order No. 33 to govern the
aforementioned reorganization of the Judiciary. 4
The Screening Committee recommended the return of petitioner as

The Screening Committee recommended the return of petitioner as

Associate Justice of the new Court of Appeals and assigned him the rank of
number eleven (11) in the roster of appellate court justices. When the
appointments were signed by President Aquino on 28 July 1986, petitioner's
seniority ranking changed, however, from number eleven (11) to number
twenty six (26). 5

Cdpr

Petitioner now alleges that the change in his seniority ranking could only be
attributed to inadvertence for, otherwise, it would run counter to the
provisions of Section 2 of Executive Order No. 33, which reads:

"SECTION 2.
Section 3, Chapter 1 of Batas Pambansa Blg.
129, is hereby amended to read as follows:

"SEC. 2.
Organization. There is hereby created a Court of
Appeals which shall consist of a Presiding Justice and fifty
Associate Justices who shall be appointed by the President of the
Philippines. The Presiding Justice shall be so designated in his
appointment and the Associate Justice shall have precedence
according to the dates of their respective appointments, or when
the appointments of two or more shall bear the same date,
according to the order in which their appointments were issued by
the President. Any Member who is reappointed to the Court after
rendering service in any other position in the government shall
retain the precedence to which he was entitled under his original
appointment, and his service in the Court shall, for all intents and
purpose be considered as continuous and uninterrupted." 6

Petitioner elaborates that President Aquino is presumed to have intended to

comply with her own Executive Order No. 33 so much so that the correction
of the inadvertent error would only implement the intent of the President as
well as the spirit of Executive Order No. 33 and will not provoke any kind of
constitutional confrontation (between the President and the Supreme Court).
7

Petitioner points to the case of Justice Oscar Victoriano, former Presiding

Justice of the Court of Appeals who, according to petitioner, was transferred
from his position as Justice of the Court of Appeals to the Ministry of Justice
as Commissioner of Land Registration and in 1986 was reappointed to the
Court of Appeals. Petitioner states that his (Victoriano's) stint in the
Commission of Land Registration did not adversely affect his seniority
ranking in the Court of Appeals, for, in his case, Executive Order No. 33 was
correctly applied. 8

"IN VIEW WHEREOF, the petition of Associate Justice Reynato S.

In a resolution of the Court en banc dated 29 November 1990, the Court

granted Justice Puno's request. 9 It will be noted that before the issuance of
said resolution, there was no written opposition to, or comment on
petitioner's aforesaid request. The dispositive portion of the resolution reads:

"IN VIEW WHEREOF, the petition of Associate Justice Reynato S.

Puno for correction of his seniority ranking in the Court of Appeals
is granted. The presiding Justice of the Court of Appeals, the
Honorable Rodolfo A. Nocon, is hereby directed to correct the
seniority rank of Justice Puno from number twelve (12) to number
five (5). Let copies of this Resolution be furnished the Court
Administrator and the Judicial and Bar Council for their guidance
and information." 10

A motion for reconsideration of the resolution of the Court en banc dated 29

November 1990 was later filed by Associate Justices Jose C. Campos, Jr.
and Luis A. Javellana, two (2) of the Associate Justices affected by the
ordered correction. They contend that the present Court of Appeals is a new
Court with fifty one (51) members and that petitioner could not claim a
reappointment to a prior court; neither can he claim that he was returning to
his former court, for the courts where he had previously been appointed
ceased to exist at the date of his last appointment. 11
The Court en banc in a resolution dated 17 January 1992 required the
petitioner to file his comment on the motion for reconsideration of the
resolution dated 29 November 1990.
In his Comment, petitioner argues that, by virtue of Executive Order No. 33
read in relation to B.P. Blg. 129, his seniority ranking in the Court of Appeals
is now number five (5) for, though President Aquino rose to power by virtue
of a revolution, she had pledged at the issuance of Proclamation No. 3
(otherwise known as the Freedom Constitution) that "no right provided under
the unratified 1973 Constitution (shall) be absent in the Freedom
Constitution." 12
Moreover, since the last sentence of Section 2 of Executive Order No. 33
virtually re-enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129,
statutory construction rules on simultaneous repeal and re-enactment
mandate, according to petitioner, the preservation and enforcement of all
rights and liabilities which had accrued under the original statute. 13
Furthermore, petitioner avers that, although the power of appointment is
executive in character and cannot be usurped by any other branch of the
Government, such power can still be regulated by the Constitution and by
the appropriate law, in this case, by the limits set by Executive Order NO. 33
for the power of appointment cannot be wielded in violation of law. 15
14

LibLex

Justices Javellana and Campos were required by the Court to file their reply
to Justice Puno's comment on their motion for reconsideration of the
resolution of the Court en banc dated 24 January 1991.
In their Reply and Supplemental Reply, Associate Justices Javellana and
Campos submit that the appeal or request for correction filed by the
petitioner was addressed to the wrong party. They aver that as petitioner
himself had alleged the mistake to be an "inadvertent error" of the Office of

himself had alleged the mistake to be an "inadvertent error" of the Office of

the President, ergo, he should have filed his request for correction also with
said Office of the President and not directly with the Supreme Court. 16
Furthermore, they point out that petitioner had indeed filed with the Office of
the President a request or petition for correction of his ranking, (seniority) but
the same was not approved such that his recourse should have been an
appropriate action before the proper court and impleading all parties
concerned. The aforesaid non-approval by the Office of the President they
argue, should be respected by the Supreme Court "not only on the basis of
the doctrine of separation of powers but also their presumed knowledge
ability and even expertise in the laws they are entrusted to enforce" 17 for it
(the non-approval) is a confirmation that petitioner's seniority ranking at the
time of his appointment by President Aquino was, in fact, deliberate and not
an "inadvertent error" as petitioner would have the Court believe. 18

The resolution of this controversy is not a pleasant task for the Court since it
involves not only members of the next highest court of the land but persons
who are close to members of this Court. But the controversy has to be
resolved. The core issue in this case is whether the present Court of Appeals
is a new court such that it would negate any claim to precedence or seniority
admittedly enjoyed by petitioner in the Court of Appeals and Intermediate
Appellate Court existing prior to Executive Order No. 33 or whether the
present Court of Appeals is merely a continuation of the Court of Appeals
and Intermediate Appellate Court existing prior to said Executive Order No.
33.

It is the holding of the Court that the present Court of Appeals is a new entity,
different and distinct from the Court of Appeals or the Intermediate Appellate
Court existing prior to Executive Order No. 33, for it was created in the wake
of the massive reorganization launched by the revolutionary government of
Corazon C. Aquino in the aftermath of the people power (EDSA) revolution in
1986.

A revolution has been defined as "the complete overthrow of the established

government in any country or state by those who were previously subject to
it" 19 or as "a sudden, radical and fundamental change in the government or
political system, usually effected with violence or at least some acts of
violence." 20 In Kelsen's book, General Theory of Law and State, it is defined
as that which "occurs whenever the legal order of a community is nullified
and replaced by a new order . . . a way not prescribed by the first order
itself." 21

It was through the February 1986 revolution, a relatively peaceful one, and
more popularly known as the "people power revolution" that the Filipino
people tore themselves away from an existing regime. This revolution also
saw the unprecedented rise to power of the Aquino government.

saw the unprecedented rise to power of the Aquino government.

From the natural law point of view, the right of revolution has been defined as
"an inherent right of a people to cast out their rulers, change their policy or
effect radical reforms in their system of government or institutions by force or
a general uprising when the legal and constitutional methods of making such
change have proved inadequate or are so obstructed as to be unavailable."
22 It has been said that "the locus of positive law-making power lies with the
people of the state" and from there is derived "the right of the people to
abolish, to reform and to alter any existing form of government without
regard to the existing constitution." 23
The three (3) clauses that precede the text of the Provisional (Freedom)
Constitution, 24 read:
"WHEREAS, the new government under President Corazon C.
Aquino was installed through a direct exercise of the power of the
Filipino people assisted by units of the New Armed Forces of the
Philippines;
"WHEREAS, the heroic action of the people was done in defiance
of the provisions of the 1973 Constitution, as amended;
"WHEREFORE, I, Corazon C. Aquino, President of the
Philippines, by virtue of the powers vested in me by the sovereign
mandate of the people, do hereby promulgate the following
Provisional Constitution." 25

These summarize the Aquino government's position that its mandate is taken
from "a direct exercise of the power of the Filipino people." 26
Discussions and opinions of legal experts also proclaim that the Aquino
government was "revolutionary in the sense that it came into existence in
defiance of the existing legal processes" 27 and that it was a revolutionary
government "instituted by the direct action of the people and in opposition to
the authoritarian values and practices of the overthrown government." 28
A question which naturally comes to mind is whether the then existing legal
order was overthrown by the Aquino government. "A legal order is the
authoritative code of a polity. Such code consists of all the rules found in the
enactments of the organs of the polity. Where the state operates under a
written constitution, its organs may be readily determined from a reading of
its provisions. Once such organs are ascertained, it becomes an easy matter
to locate their enactments. The rules in such enactments, along with those in
the constitution, comprise the legal order of that constitutional state." 29 It is
assumed that the legal order remains as a "culture system" of the polity as
long as the latter endures 30 and that a point may be reached, however,
where the legal system ceases to be operative as a whole for it is no longer
obeyed by the population nor enforced by the officials. 31

It is widely known that Mrs. Aquino's rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions
of the 1973 Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos at the winner in the 1986 presidential election. 32 Thus it
can be said that the organization of Mrs. Aquino's Government which was
met by little resistance and her control of the state evidenced by the
appointment of the Cabinet and other key officers of the administration, the
departure of the Marcos Cabinet officials, revampt of the Judiciary and the
Military signalled the point where the legal system then in effect, had ceased
to be obeyed by the Filipino.

The Court holds that the Court of Appeals and Intermediate Appellate Court
existing prior to Executive Order No. 33 phased out as part of the legal
system abolished by the revolution and that the Court of Appeals established
under Executive Order No. 33 was an entirely new court with appointments
thereto having no relation to earlier appointments to the abolished courts,
and that the reference to precedence in rank contained in the last sentence
of Sec. 2, BP Blg. No. 129 as amended by Executive Order No. 33 refers to
prospective situations as distinguished from retroactive ones.

But even assuming, arguendo, that Executive Order No. 33 did not abolish
the precedence or seniority ranking resulting from previous appointment to
the Court of Appeals or Intermediate Appellate Court existing prior to the
1986 revolution, it is believed that President Aquino as head of then
revolutionary government, could disregard or set aside such precedence or
seniority in ranking when she made her appointments to the reorganized
Court of Appeals in 1986.

It is to be noted that, at the time of the issuance of Executive Order No. 33,
President Aquino was still exercising the powers of a revolutionary
government, encompassing both executive and legislative powers, such that
she could, if she so desired, amend, modify or repeal any part of B.P. Blg.
129 or her own Executive Order No. 33. It should also be remembered that
the same situation was still in force when she issued the 1986 appointments
to the Court of Appeals. In other words, President Aquino, at the time of the
issuance of the 1986 appointments, modified or disregarded the rule
embodied in B.P. Blg. 129 as amended by Executive Order No. 33, on
precedence or seniority in the case of the petitioner, for reasons known only
to her. Since the appointment extended by the President to the petitioner in
1986 for membership in the new Court of Appeals with its implicit ranking in
the roster of justices, was a valid appointment anchored on the President's
exercise of her then revolutionary powers, it is not for the Court at this time to
question or correct that exercise.

ACCORDINGLY, the Court GRANTS the Motion for Reconsideration and the
seniority rankings of members of the Court of Appeals, including that of the
petitioner, at the time the appointments were made by the President in 1986,
are recognized and upheld.

are recognized and upheld.

SO ORDERED.
Paras, Grio-Aquino, Regalado, Davide, Jr. and Romero, JJ ., concur.

Separate Opinions
FELICIANO, J ., concurring:
I agree with the conclusion reached in the majority opinion written by my
learned brother, Padilla, J. In particular, I agree that the Court of Appeals
established by Executive Order No. 33 is a new court, and was not merely
the old Intermediate Appellate Court with a new label.
If one examines the provisions of B.P. Blg. 129, known as "The Judiciary
Reorganization Act of 1980," relating to the old Intermediate Appellate Court,
it is quite clear that the previously existing Court of Appeals was abolished
and a new court, denominated the Intermediate Appellate Court, was
created. Thus, Section 3 of B.P. Blg. 129 reads as follows:
"Sec. 3.
Organization. There is hereby created an
Intermediate Appellate Court which shall consist of a Presiding
Appellate Justice and forty-nine Associate Appellate Justices who
shall be appointed by the President of the Philippines. The
Presiding Appellate Justice shall be so designated in his
appointment, and the Associate Appellate Justices shall have
precedence according to the dates of their respective
appointments, or when the appointments of two or more of them
shall bear the same date, according to the order in which their
appointments were issued by the President. Any member who is
reappointed to the Court after rendering service in any other
position in the government shall retain the precedence to which he
was entitled under his original appointment, and his service in
Court shall, to all intents and purposes, be considered as
continuous and uninterrupted." (Emphasis supplied)

Section 44 of the same statute provided as follows:

"Sec. 44.
Transitory provisions. The provisions of this Act
shall be immediately carried out in accordance with an Executive
Order to be issued by the President. The Court of Appeals, the
Courts of First Instance, the Circuit Criminal Courts, the Juvenile
and Domestic Relations Courts, the Courts of Agrarian Relations,
the City Courts, the Municipal Courts, and the Municipal Circuit
Courts shall continue to function as presently constituted and
organized, until the completion of the reorganization provided in
this Act as declared by the President. Upon such declaration, the
said courts shall be deemed automatically abolished and the

xxx xxx xxx

said courts shall be deemed automatically abolished and the

incumbents thereof shall cease to hold office. The cases pending
in the old Courts shall be transferred to the appropriate Courts
constituted pursuant to this Act, together with the pertinent
function, records, equipment, property and the necessary
personnel.

(Emphasis supplied)

Executive Order No. 33, promulgated on 28 July 1986, provided in part as

follows:

"Section 2.
Section 3, Chapter I of Batas Pambansa Blg. 129,
is hereby amended to read as follows:

'SEC. 3.
Organization There is hereby
created a Court of Appeals which shall consist of a
Presiding Justice and fifty Associate Justices who shall be
appointed by the President of the Philippines. The
Presiding Justice shall be so designated in his appointment,
and the Associate Justices shall have precedence
according to the dates of their respective appointments, or
when the appointments of two or more of them shall bear
the same date, according to the order in which their
appointments were issued by the President. Any member
who is reappointed to the Court after rendering service in
any other position in the government shall retain the
precedence to which he was entitled under his original
appointment, and his service in the Court shall, for all
intents and purposes, be considered as continuous and
uninterrupted.' " (Emphasis supplied)

Although Executive Order No. 33 spoke of amending Section 3, Chapter

1 of B.P. Blg. 129, it will be seen that what really happened was the reenactment of said Section 3, Chapter 1 of B.P. Blg. 129. In other words,
much more happened than simply the renaming of the old Intermediate
Appellate Court into (once again) Court of Appeals. If all that Executive
Order No. 33 wanted to achieve was the relabeling of the old Intermediate
Appellate Court into the "Court of Appeals," there was no need to amend
or re-enact Section 3 of B.P. Blg. 129. For Section 8 of Executive Order
No. 33 provided as follows:

"SECTION 8.
The terms 'Intermediate Appellate Court,
Presiding Appellate Justice and Associate Appellate Justice(s)'
used in the Judiciary Reorganization Act of 1980 or in any other
law or executive order shall hereafter mean Court of Appeals,
Presiding Justice and Associate Justice(s), respectively."

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 104768

July 21, 2003

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the Sandiganbayan
(First Division)1 dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The first Resolution dismissed
petitioners Amended Complaint and ordered the return of the confiscated items to respondent Elizabeth Dimaano,
while the second Resolution denied petitioners Motion for Reconsideration. Petitioner prays for the grant of the
reliefs sought in its Amended Complaint, or in the alternative, for the remand of this case to the Sandiganbayan
(First Division) for further proceedings allowing petitioner to complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA Revolution, then President Corazon C.
Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential Commission on Good Government
("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates. EO No. 1 vested the PCGG with the
power "(a) to conduct investigation as may be necessary in order to accomplish and carry out the purposes of this
order" and the power "(h) to promulgate such rules and regulations as may be necessary to carry out the purpose of
this order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board
("AFP Board") tasked to investigate reports of unexplained wealth and corrupt practices by AFP personnel, whether
in the active service or retired.2
Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of respondent
Major General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board issued a Resolution on its findings
and recommendation on the reported unexplained wealth of Ramas. The relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan St., La Vista,
Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has an area of 3,327 square
meters.
The value of the property located in Quezon City may be estimated modestly at P700,000.00.
The equipment/items and communication facilities which were found in the premises of Elizabeth Dimaano and were
confiscated by elements of the PC Command of Batangas were all covered by invoice receipt in the name of CAPT.
EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have been in the possession of Elizabeth
Dimaano if not given for her use by respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the raiding team was also able to
confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the house of Elizabeth Dimaano on 3
March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army, stationed at Camp
Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the mistress of respondent. That respondent
usually goes and stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas, Batangas
City and when he arrives, Elizabeth Dimaano embraces and kisses respondent. That on February 25, 1986, a
person who rode in a car went to the residence of Elizabeth Dimaano with four (4) attache cases filled with money
and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income and is
supported by respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items seized in her
house on March 3, 1986 without the consent of respondent, he being the Commanding General of the Philippine
Army. It is also impossible for Elizabeth Dimaano to claim that she owns the P2,870,000.00 and $50,000 US Dollars
for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of respondent. There was an intention to
cover the existence of these money because these are all ill-gotten and unexplained wealth. Were it not for the
affidavits of the members of the Military Security Unit assigned at Camp Eldridge, Los Baos, Laguna, the existence
and ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by the Boards
consultant. Although the amount of P2,870,000.00 and $50,000 US Dollars were not included, still it was disclosed
that respondent has an unexplained wealth of P104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten and
unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA
3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA 1379, as amended,
otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property."3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA No. 1379") 4
against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an Amended Complaint
naming the Republic of the Philippines ("petitioner"), represented by the PCGG, as plaintiff and Ramas as
defendant. The Amended Complaint also impleaded Elizabeth Dimaano ("Dimaano") as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until 1986. On
the other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine Army, assigned as a clerktypist at the office of Ramas from 1 January 1978 to February 1979. The Amended Complaint further alleged that
Ramas "acquired funds, assets and properties manifestly out of proportion to his salary as an army officer and his
other income from legitimately acquired property by taking undue advantage of his public office and/or using his
power, authority and influence as such officer of the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos."5
The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable ground to
believe that respondents have violated RA No. 1379.6 The Amended Complaint prayed for, among others, the
forfeiture of respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the Amended
Complaint. In his Answer, Ramas contended that his property consisted only of a residential house at La Vista
Subdivision, Quezon City, valued at P700,000, which was not out of proportion to his salary and other legitimate
income. He denied ownership of any mansion in Cebu City and the cash, communications equipment and other
items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-typist in the office
of Ramas from January-November 1978 only, Dimaano claimed ownership of the monies, communications
equipment, jewelry and land titles taken from her house by the Philippine Constabulary raiding team.

After termination of the pre-trial,7 the court set the case for trial on the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation for trial and the
absence of witnesses and vital documents to support its case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to charge the delinquent
properties with being subject to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x."8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners presentation of
evidence on the ground that the motion for leave to amend complaint did not state when petitioner would file the
amended complaint. The Sandiganbayan further stated that the subject matter of the amended complaint was on its
face vague and not related to the existing complaint. The Sandiganbayan also held that due to the time that the
case had been pending in court, petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the trial.
On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to proceed to trial
because of the absence of other witnesses or lack of further evidence to present. Instead, petitioner reiterated its
motion to amend the complaint to conform to the evidence already presented or to change the averments to show
that Dimaano alone unlawfully acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because of its many
postponements. Moreover, petitioner would want the case to revert to its preliminary stage when in fact the case had
long been ready for trial. The Sandiganbayan ordered petitioner to prepare for presentation of its additional
evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence. Giving petitioner
one more chance to present further evidence or to amend the complaint to conform to its evidence, the
Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however, hinted that the re-setting was without
prejudice to any action that private respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had no further
evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60 days within which to
file an appropriate pleading. The Sandiganbayan, however, warned petitioner that failure to act would constrain the
court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v. Migrino.9 The Court held in Migrino that
the PCGG does not have jurisdiction to investigate and prosecute military officers by reason of mere position held
without a showing that they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without pronouncement as to
costs. The counterclaims are likewise dismissed for lack of merit, but the confiscated sum of money,
communications equipment, jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary jurisdiction
over the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence warrants. This case is
also referred to the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of
respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition to which
petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the following grounds:
(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court in Cruz, Jr.

v. Sandiganbayan10 and Republic v. Migrino11 which involve the same issues.

(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted against Ramas
and Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO SHOWING OF CONSPIRACY,
COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT
RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS
WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED PRIOR TO THE
COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN
CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra, are clearly not
applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil Case No. 0037 was cured and/or
waived by respondents with the filing of their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper considering that they were filed after
commencement of the presentation of the evidence of the petitioner and even before the latter was
allowed to formally offer its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND THINGS SUCH
AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES CONFISCATED
FROM THE HOUSE OF RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND THEREFORE
EXCLUDED AS EVIDENCE.12
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v. Sandiganbayan13 and
Republic v. Migrino.14
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the filing of a
forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP personnel,
whether in the active service or retired.15 The PCGG tasked the AFP Board to make the necessary
recommendations to appropriate government agencies on the action to be taken based on its findings.16 The PCGG
gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of EO No. 1 "to conduct
investigation as may be necessary in order to accomplish and to carry out the purposes of this order." EO No. 1
gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the Philippines or abroad, including the takeover

and sequestration of all business enterprises and entities owned or controlled by them, during his administration,
directly or through nominees, by taking undue advantage of their public office and/ or using their powers, authority,
influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the President may assign to the Commission from time
to time.
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of AFP
personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are: (1) AFP
personnel who have accumulated ill-gotten wealth during the administration of former President Marcos by being the
latters immediate family, relative, subordinate or close associate, taking undue advantage of their public office or
using their powers, influence x x x;17 or (2) AFP personnel involved in other cases of graft and corruption provided
the President assigns their cases to the PCGG.18
Petitioner, however, does not claim that the President assigned Ramas case to the PCGG. Therefore, Ramas case
should fall under the first category of AFP personnel before the PCGG could exercise its jurisdiction over him.
Petitioner argues that Ramas was undoubtedly a subordinate of former President Marcos because of his position as
the Commanding General of the Philippine Army. Petitioner claims that Ramas position enabled him to receive
orders directly from his commander-in-chief, undeniably making him a subordinate of former President Marcos.
We hold that Ramas was not a "subordinate" of former President Marcos in the sense contemplated under EO No. 1
and its amendments.
Mere position held by a military officer does not automatically make him a "subordinate" as this term is used in EO
Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former President Marcos. Migrino
discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated within the term
subordinate. The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-gotten wealth amassed
by former President Ferdinand E. Marcos, his immediate family, relatives, and close associates both here and
abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs.
Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents, or nominees have any
interest or participation.
Applying the rule in statutory construction known as ejusdem generis that is[W]here general words follow an enumeration of persons or things by words of a particular and specific meaning,
such general words are not to be construed in their widest extent, but are to be held as applying only to persons or
things of the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds of
Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association with former
President Marcos and/or his wife, similar to the immediate family member, relative, and close associate in EO No. 1
and the close relative, business associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government official or employee during the
administration of former President Marcos. There must be a prima facie showing that the respondent unlawfully
accumulated wealth by virtue of his close association or relation with former Pres. Marcos and/or his wife.
(Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the rank of Major General19 does not
suffice to make him a "subordinate" of former President Marcos for purposes of EO No. 1 and its amendments. The
PCGG has to provide a prima facie showing that Ramas was a close associate of former President Marcos, in the
same manner that business associates, dummies, agents or nominees of former President Marcos were close to
him. Such close association is manifested either by Ramas complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by former President Marcos acquiescence in Ramas
own accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.

Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner argues that unlike
in Migrino, the AFP Board Resolution in the instant case states that the AFP Board conducted the investigation
pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts that there is a presumption that
the PCGG was acting within its jurisdiction of investigating crony-related cases of graft and corruption and that
Ramas was truly a subordinate of the former President. However, the same AFP Board Resolution belies this
contention. Although the Resolution begins with such statement, it ends with the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for violation of RA
3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA 1379, as amended,
otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property."20
Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2, 14 and 14A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2,
14 and 14-A. This absence of relation to EO No. 1 and its amendments proves fatal to petitioners case. EO No. 1
created the PCGG for a specific and limited purpose, and necessarily its powers must be construed to address such
specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the properties
Ramas allegedly owned were accumulated by him in his capacity as a "subordinate" of his commander-in-chief.
Petitioner merely enumerated the properties Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without showing that Ramas amassed them because of
his close association with former President Marcos. Petitioner, in fact, admits that the AFP Board resolution does not
contain a finding that Ramas accumulated his wealth because of his close association with former President
Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the Philippines did
not categorically find a prima facie evidence showing that respondent Ramas unlawfully accumulated
wealth by virtue of his close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board should be read in the context
of the law creating the same and the objective of the investigation which was, as stated in the above, pursuant to
Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21 (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten wealth was
accumulated by a "subordinate" of former President Marcos that vests jurisdiction on PCGG. EO No. 122 clearly
premises the creation of the PCGG on the urgent need to recover all ill-gotten wealth amassed by former President
Marcos, his immediate family, relatives, subordinates and close associates. Therefore, to say that such omission
was not fatal is clearly contrary to the intent behind the creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that fall under the jurisdiction of the PCGG pursuant to
EO Nos. 1, 2,24 14,25 14-A:26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of Executive
Order No. 14, shows what the authority of the respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth under Republic Act
No. 1379, accumulated by former President Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the take-over or sequestration of all
business enterprises and entities owned or controlled by them, during his administration, directly or through
his nominees, by taking undue advantage of their public office and/or using their powers, authority and
influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of the President for the respondent PCGG to investigate
and prosecute in accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction over such
cases is vested in the Ombudsman and other duly authorized investigating agencies such as the provincial
and city prosecutors, their assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture petitions not
falling under EO No. 1 and its amendments. The preliminary investigation of unexplained wealth amassed on or
before 25 February 1986 falls under the jurisdiction of the Ombudsman, while the authority to file the corresponding
forfeiture petition rests with the Solicitor General.27 The Ombudsman Act or Republic Act No. 6770 ("RA No. 6770")
vests in the Ombudsman the power to conduct preliminary investigation and to file forfeiture proceedings involving
unexplained wealth amassed after 25 February 1986.28
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence of a prima
facie finding that Ramas was a "subordinate" of former President Marcos. The petition for forfeiture filed with the
Sandiganbayan should be dismissed for lack of authority by the PCGG to investigate respondents since there is no
prima facie showing that EO No. 1 and its amendments apply to respondents. The AFP Board Resolution and even
the Amended Complaint state that there are violations of RA Nos. 3019 and 1379. Thus, the PCGG should have
recommended Ramas case to the Ombudsman who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of private
respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from proceeding with
the case, without prejudice to any action that may be taken by the proper prosecutory agency. The rule of law
mandates that an agency of government be allowed to exercise only the powers granted to it.
Petitioners argument that private respondents have waived any defect in the filing of the forfeiture petition by
submitting their respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the first place. The
PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGGs powers are specific and
limited. Unless given additional assignment by the President, PCGGs sole task is only to recover the ill-gotten
wealth of the Marcoses, their relatives and cronies.29 Without these elements, the PCGG cannot claim jurisdiction
over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to investigate and prosecute their cases
by filing their Motion to Dismiss as soon as they learned of the pronouncement of the Court in Migrino. This case
was decided on 30 August 1990, which explains why private respondents only filed their Motion to Dismiss on 8
October 1990. Nevertheless, we have held that the parties may raise lack of jurisdiction at any stage of the
proceeding.30 Thus, we hold that there was no waiver of jurisdiction in this case. Jurisdiction is vested by law and
not by the parties to an action.31
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the preliminary
investigation. The Ombudsman may still conduct the proper preliminary investigation for violation of RA No. 1379,
and if warranted, the Solicitor General may file the forfeiture petition with the Sandiganbayan.32 The right of the
State to forfeit unexplained wealth under RA No. 1379 is not subject to prescription, laches or estoppel.33
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the presentation
of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has only itself to
blame for non-completion of the presentation of its evidence. First, this case has been pending for four years before
the Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11 August 1987, and only began to
present its evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence. However, despite this
sufficient time, petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for
postponements and extensions. Even before the date set for the presentation of its evidence, petitioner filed, on 13
April 1989, a Motion for Leave to Amend the Complaint.34 The motion sought "to charge the delinquent properties
(which comprise most of petitioners evidence) with being subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x."
The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since petitioner did not
state when it would file the amended complaint. On 18 April 1989, the Sandiganbayan set the continuation of the
presentation of evidence on 28-29 September and 9-11 October 1989, giving petitioner ample time to prepare its
evidence. Still, on 28 September 1989, petitioner manifested its inability to proceed with the presentation of its

evidence. The Sandiganbayan issued an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events because this case has been
ready for trial for over a year and much of the delay hereon has been due to the inability of the government to
produce on scheduled dates for pre-trial and for trial documents and witnesses, allegedly upon the failure of the
military to supply them for the preparation of the presentation of evidence thereon. Of equal interest is the fact that
this Court has been held to task in public about its alleged failure to move cases such as this one beyond the
preliminary stage, when, in view of the developments such as those of today, this Court is now faced with a situation
where a case already in progress will revert back to the preliminary stage, despite a five-month pause where
appropriate action could have been undertaken by the plaintiff Republic.35
On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation on the
unexplained wealth of private respondents as mandated by RA No. 1379.36 The PCGG prayed for an additional four
months to conduct the preliminary investigation. The Sandiganbayan granted this request and scheduled the
presentation of evidence on 26-29 March 1990. However, on the scheduled date, petitioner failed to inform the court
of the result of the preliminary investigation the PCGG supposedly conducted. Again, the Sandiganbayan gave
petitioner until 18 May 1990 to continue with the presentation of its evidence and to inform the court of "what lies
ahead insofar as the status of the case is concerned x x x."37 Still on the date set, petitioner failed to present its
evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended Complaint.38 The Sandiganbayan correctly
observed that a case already pending for years would revert to its preliminary stage if the court were to accept the
Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure to complete the presentation
of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the presentation of its
evidence. The Sandiganbayan overlooked petitioners delays and yet petitioner ended the long-string of delays with
the filing of a Re-Amended Complaint, which would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss the case
since the PCGG has no jurisdiction to investigate and prosecute the case against private respondents. This alone
would have been sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against private
respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the presentation of
petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaanos house as
illegally seized and therefore inadmissible in evidence. This issue bears a significant effect on petitioners case since
these properties comprise most of petitioners evidence against private respondents. Petitioner will not have much
evidence to support its case against private respondents if these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant captioned "Illegal
Possession of Firearms and Ammunition." Dimaano was not present during the raid but Dimaanos cousins
witnessed the raid. The raiding team seized the items detailed in the seizure receipt together with other items not
included in the search warrant. The raiding team seized these items: one baby armalite rifle with two magazines; 40
rounds of 5.56 ammunition; one pistol, caliber .45; communications equipment, cash consisting of P2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure "on March
3, 1986 or five days after the successful EDSA revolution."39 Petitioner argues that a revolutionary government was
operative at that time by virtue of Proclamation No. 1 announcing that President Aquino and Vice President Laurel
were "taking power in the name and by the will of the Filipino people."40 Petitioner asserts that the revolutionary
government effectively withheld the operation of the 1973 Constitution which guaranteed private respondents
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only beginning 2
February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that all rights under the Bill of
Rights had already reverted to its embryonic stage at the time of the search. Therefore, the government may
confiscate the monies and items taken from Dimaano and use the same in evidence against her since at the time of
their seizure, private respondents did not enjoy any constitutional right.
Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquinos Proclamation
No. 3 dated 25 March 1986, the EDSA Revolution was "done in defiance of the provisions of the 1973
Constitution."41 The resulting government was indisputably a revolutionary government bound by no constitution or
legal limitations except treaty obligations that the revolutionary government, as the de jure government in the
Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the 1973
Constitution during the interregnum, that is, after the actual and effective take-over of power by the revolutionary
government following the cessation of resistance by loyalist forces up to 24 March 1986 (immediately before the
adoption of the Provisional Constitution); and (2) whether the protection accorded to individuals under the
International Covenant on Civil and Political Rights ("Covenant") and the Universal Declaration of Human Rights
("Declaration") remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum. However, we
rule that the protection accorded to individuals under the Covenant and the Declaration remained in effect during the
interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme law because
no constitution limited the extent and scope of such directives and orders. With the abrogation of the 1973
Constitution by the successful revolution, there was no municipal law higher than the directives and orders of the
revolutionary government. Thus, during the interregnum, a person could not invoke any exclusionary right under a
Bill of Rights because there was neither a constitution nor a Bill of Rights during the interregnum. As the Court
explained in Letter of Associate Justice Reynato S. Puno:42
A revolution has been defined as "the complete overthrow of the established government in any country or state by
those who were previously subject to it" or as "a sudden, radical and fundamental change in the government or
political system, usually effected with violence or at least some acts of violence." In Kelsen's book, General Theory
of Law and State, it is defined as that which "occurs whenever the legal order of a community is nullified and
replaced by a new order . . . a way not prescribed by the first order itself."
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the "people
power revolution" that the Filipino people tore themselves away from an existing regime. This revolution also saw
the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as "an inherent right of a people to cast
out their rulers, change their policy or effect radical reforms in their system of government or institutions by force or
a general uprising when the legal and constitutional methods of making such change have proved inadequate or are
so obstructed as to be unavailable." It has been said that "the locus of positive law-making power lies with the
people of the state" and from there is derived "the right of the people to abolish, to reform and to alter any existing
form of government without regard to the existing constitution."
xxx
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional processes; in fact,
it was achieved in violation of the provisions of the 1973 Constitution as a Batasang Pambansa resolution
had earlier declared Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that the
organization of Mrs. Aquinos Government which was met by little resistance and her control of the state evidenced
by the appointment of the Cabinet and other key officers of the administration, the departure of the Marcos Cabinet
officials, revamp of the Judiciary and the Military signaled the point where the legal system then in effect, had
ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum would render
void all sequestration orders issued by the Philippine Commission on Good Government ("PCGG") before the
adoption of the Freedom Constitution. The sequestration orders, which direct the freezing and even the take-over of
private property by mere executive issuance without judicial action, would violate the due process and search and
seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary government bound by no
constitution. No one could validly question the sequestration orders as violative of the Bill of Rights because there
was no Bill of Rights during the interregnum. However, upon the adoption of the Freedom Constitution, the
sequestered companies assailed the sequestration orders as contrary to the Bill of Rights of the Freedom
Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good Government,43 petitioner Baseco,

while conceding there was no Bill of Rights during the interregnum, questioned the continued validity of the
sequestration orders upon adoption of the Freedom Constitution in view of the due process clause in its Bill of
Rights. The Court ruled that the Freedom Constitution, and later the 1987 Constitution, expressly recognized the
validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety of
sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular remedies and the
authority of the PCGG to issue them have received constitutional approbation and sanction. As already mentioned,
the Provisional or "Freedom" Constitution recognizes the power and duty of the President to enact "measures to
achieve the mandate of the people to . . . (r)ecover ill-gotten properties amassed by the leaders and supporters of
the previous regime and protect the interest of the people through orders of sequestration or freezing of assets or
accounts." And as also already adverted to, Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies
the "authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986."
The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the sequestration
orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to include specific language
recognizing the validity of the sequestration orders. The following discourse by Commissioner Joaquin G. Bernas
during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense of the present
amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta University Foundation, of
which all of us have been given a copy. On the one hand, he argues that everything the Commission is doing is
traditionally legal. This is repeated by Commissioner Romulo also. Minister Salonga spends a major portion of his
lecture developing that argument. On the other hand, almost as an afterthought, he says that in the end what
matters are the results and not the legal niceties, thus suggesting that the PCGG should be allowed to make some
legal shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection? The answer is
clear. What they are doing will not stand the test of ordinary due process, hence they are asking for protection, for
exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but let us not say grandes malos, grande
y malos remedios. That is not an allowable extrapolation. Hence, we should not give the exceptions asked for, and
let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to hasten constitutional
normalization. Very much at the heart of the constitutional normalization is the full effectivity of the Bill of Rights. We
cannot, in one breath, ask for constitutional normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be hypocritical; that would be a repetition of
Marcosian protestation of due process and rule of law. The New Society word for that is "backsliding." It is tragic
when we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report asks for
extraordinary exceptions from the Bill of Rights for six months after the convening of Congress, and Congress may
even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report is asking for is
that we should allow the new government to acquire the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to think that they
have a vested right to its practice, and they will fight tooth and nail to keep the franchise. That would be an
unhealthy way of consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an argument that is very
disturbing. When it comes from a staunch Christian like Commissioner Salonga, a Minister, and repeated verbatim
by another staunch Christian like Commissioner Tingson, it becomes doubly disturbing and even discombobulating.
The argument makes the PCGG an auctioneer, placing the Bill of Rights on the auction block. If the price is right, the
search and seizure clause will be sold. "Open your Swiss bank account to us and we will award you the search and
seizure clause. You can keep it in your private safe."
Alternatively, the argument looks on the present government as hostage to the hoarders of hidden wealth. The
hoarders will release the hidden health if the ransom price is paid and the ransom price is the Bill of Rights,
specifically the due process in the search and seizure clauses. So, there is something positively revolving about
either argument. The Bill of Rights is not for sale to the highest bidder nor can it be used to ransom captive dollars.
This nation will survive and grow strong, only if it would become convinced of the values enshrined in the

Constitution of a price that is beyond monetary estimation.

For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8 of the
committee report and allow the new Constitution to take effect in full vigor. If Section 8 is deleted, the PCGG has two
options. First, it can pursue the Salonga and the Romulo argument that what the PCGG has been doing has
been completely within the pale of the law. If sustained, the PCGG can go on and should be able to go on, even
without the support of Section 8. If not sustained, however, the PCGG has only one honorable option, it must bow to
the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what another Christian
replied when asked to toy around with the law. From his prison cell, Thomas More said, "I'll give the devil benefit of
law for my nations safety sake." I ask the Commission to give the devil benefit of law for our nations sake. And we
should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration orders
from the Bill of Rights, the Constitutional Commission still adopted the amendment as Section 26,44 Article XVIII of
the 1987 Constitution. The framers of the Constitution were fully aware that absent Section 26, sequestration orders
would not stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum, absent a
constitutional provision excepting sequestration orders from such Bill of Rights, would clearly render all
sequestration orders void during the interregnum. Nevertheless, even during the interregnum the Filipino people
continued to enjoy, under the Covenant and the Declaration, almost the same rights found in the Bill of Rights of the
1973 Constitution.
The revolutionary government, after installing itself as the de jure government, assumed responsibility for the States
good faith compliance with the Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant
requires each signatory State "to respect and to ensure to all individuals within its territory and subject to its
jurisdiction the rights45 recognized in the present Covenant." Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that "[n]o one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence."
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o one shall be
arbitrarily deprived of his property." Although the signatories to the Declaration did not intend it as a legally binding
document, being only a declaration, the Court has interpreted the Declaration as part of the generally accepted
principles of international law and binding on the State.46 Thus, the revolutionary government was also obligated
under international law to observe the rights47 of individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum. Whether
the revolutionary government could have repudiated all its obligations under the Covenant or the Declaration is
another matter and is not the issue here. Suffice it to say that the Court considers the Declaration as part of
customary international law, and that Filipinos as human beings are proper subjects of the rules of international law
laid down in the Covenant. The fact is the revolutionary government did not repudiate the Covenant or the
Declaration in the same way it repudiated the 1973 Constitution. As the de jure government, the revolutionary
government could not escape responsibility for the States good faith compliance with its treaty obligations under
international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and orders of the
revolutionary government became subject to a higher municipal law that, if contravened, rendered such directives
and orders void. The Provisional Constitution adopted verbatim the Bill of Rights of the 1973 Constitution.48 The
Provisional Constitution served as a self-limitation by the revolutionary government to avoid abuses of the absolute
powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by government
officers were valid so long as these officers did not exceed the authority granted them by the revolutionary
government. The directives and orders should not have also violated the Covenant or the Declaration. In this case,
the revolutionary government presumptively sanctioned the warrant since the revolutionary government did not
repudiate it. The warrant, issued by a judge upon proper application, specified the items to be searched and seized.
The warrant is thus valid with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the warrant. As admitted by petitioners
witnesses, the raiding team confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES
Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside from the
weapons, were seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano. Do you
know the reason why your team also seized other properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed that the reason why they also brought
the other items not included in the search warrant was because the money and other jewelries were contained in
attach cases and cartons with markings "Sony Trinitron", and I think three (3) vaults or steel safes. Believing that
the attach cases and the steel safes were containing firearms, they forced open these containers only to find out
that they contained money.
xxx
Q. You said you found money instead of weapons, do you know the reason why your team seized this money
instead of weapons?
A. I think the overall team leader and the other two officers assisting him decided to bring along also the money
because at that time it was already dark and they felt most secured if they will bring that because they might be
suspected also of taking money out of those items, your Honor.49
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case was applied before the Municipal Trial
Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite rifles M-16 and
five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other properties or contraband which
could be found in the residence of Miss Elizabeth Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for instance, the communications equipment
and money. However, I did not include that in the application for search warrant considering that we have not
established concrete evidence about that. So when
Q. So that when you applied for search warrant, you had reason to believe that only weapons were in the house of
Miss Elizabeth Dimaano?

A. Yes, your Honor.50

xxx
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the fiscals office who charged
Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum Receipt in the name of
Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant, like for instance, jewelries. Why
did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along also the jewelries and other
items, sir. I do not really know where it was taken but they brought along also these articles. I do not really know
their reason for bringing the same, but I just learned that these were taken because they might get lost if they will
just leave this behind.
xxx
Q. How about the money seized by your raiding team, they were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was discovered to be contained in attach
cases. These attach cases were suspected to be containing pistols or other high powered firearms, but in the
course of the search the contents turned out to be money. So the team leader also decided to take this considering
that they believed that if they will just leave the money behind, it might get lost also.
1wphi1

Q. That holds true also with respect to the other articles that were seized by your raiding team, like Transfer
Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened.51
It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies, communications
equipment, jewelry and land titles that the raiding team confiscated. The search warrant did not particularly describe
these items and the raiding team confiscated them on its own authority. The raiding team had no legal basis to seize
these items without showing that these items could be the subject of warrantless search and seizure.52 Clearly, the
raiding team exceeded its authority when it seized these items.
The seizure of these items was therefore void, and unless these items are contraband per se,53 and they are not,
they must be returned to the person from whom the raiding seized them. However, we do not declare that such
person is the lawful owner of these items, merely that the search and seizure warrant could not be used as basis to
seize and withhold these items from the possessor. We thus hold that these items should be returned immediately to
Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan dated
18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the records of this case to the
Ombudsman for such appropriate action as the evidence may warrant, and referring this case to the Commissioner
of the Bureau of Internal Revenue for a determination of any tax liability of respondent Elizabeth Dimaano, are
AFFIRMED.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 122156 February 3, 1997

MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL, respondents.

BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights, privileges, and concessions
covering the national economy and patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic Manila Hotel.
Opposing, respondents maintain that the provision is not self-executing but requires an implementing legislation for its
enforcement. Corollarily, they ask whether the 51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.

The controversy arose when respondent Government Service Insurance System (GSIS), pursuant to the
privatization program of the Philippine Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares of respondent MHC. The winning
bidder, or the eventual "strategic partner," is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the profitability and performance of the Manila
Hotel. 2 In a close bidding held on 18 September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per share, and
Renong Berhad, a Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the same number of shares at
P44.00 per share, or P2.42 more than the bid of petitioner.

Pertinent provisions of the bidding rules prepared by respondent GSIS state

I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC
1. The Highest Bidder must comply with the conditions set forth below by October 23, 1995 (reset to
November 3, 1995) or the Highest Bidder will lose the right to purchase the Block of Shares and GSIS
will instead offer the Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation System Contract or other type of contract
specified by the Highest Bidder in its strategic plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS .
...
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after the following conditions
are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October 23, 1995

(reset to November 3, 1995); and

b. Requisite approvals from the GSIS/MHC and COP (Committee on Privatization)/OGCC
(Office of the Government Corporate Counsel) are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and the execution of the
necessary contracts, petitioner in a letter to respondent GSIS dated 28 September 1995 matched the bid price of
P44.00 per share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995 petitioner sent a
manager's check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid of
the Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused to accept.

On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the tender of the matching bid
and that the sale of 51% of the MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18 October 1995 the Court issued a
temporary restraining order enjoining respondents from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it was referred to it by the First
Division. The case was then set for oral arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin
G. Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution and submits that the Manila
Hotel has been identified with the Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier generation of Filipinos who believed
in the nobility and sacredness of independence and its power and capacity to release the full potential of the Filipino
people. To all intents and purposes, it has become a part of the national patrimony. 6 Petitioner also argues that since
51% of the shares of the MHC carries with it the ownership of the business of the hotel which is owned by respondent GSIS,
a government-owned and controlled corporation, the hotel business of respondent GSIS being a part of the tourism industry
is unquestionably a part of the national economy. Thus, any transaction involving 51% of the shares of stock of the MHC is
clearly covered by the term national economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7

It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony and its business also
unquestionably part of the national economy petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the 1987 Constitution is merely a
statement of principle and policy since it is not a self-executing provision and requires implementing legislation(s) . .
. Thus, for the said provision to Operate, there must be existing laws "to lay down conditions under which business
may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall under the term national patrimony
which only refers to lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and the events that have transpired
therein which make the hotel historic, these alone do not make the hotel fall under the patrimony of the nation. What
is more, the mandate of the Constitution is addressed to the State, not to respondent GSIS which possesses a
personality of its own separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the constitutional provision invoked is still
inapplicable since what is being sold is only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of the MHC cannot be considered part of
the national patrimony. Moreover, if the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which provides that if for any reason,
the Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing to match the highest bid in terms of
price per share, is misplaced. Respondents postulate that the privilege of submitting a matching bid has not yet
arisen since it only takes place if for any reason, the Highest Bidder cannot be awarded the Block of Shares. Thus
the submission by petitioner of a matching bid is premature since Renong Berhad could still very well be awarded
the block of shares and the condition giving rise to the exercise of the privilege to submit a matching bid had not yet

taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail since respondent GSIS did not
exercise its discretion in a capricious, whimsical manner, and if ever it did abuse its discretion it was not so patent
and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law.
Similarly, the petition for mandamus should fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and administration of a nation. It
is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has been defined
as the fundamental and paramount law of the nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties, and establishes certain fixed principles
on which government is founded. The fundamental conception in other words is that it is a supreme law to which all other
laws must conform and in accordance with which all private rights must be determined and all public authority administered.
11 Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the constitution that law or
contract whether promulgated by the legislative or by the executive branch or entered into by private persons for private
purposes is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and
supreme law of the nation, it is deemed written in every statute and contract.

Admittedly, some constitutions are merely declarations of policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means of which the right it grants may be
enjoyed or protected, is self-executing. Thus a constitutional provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is referred to the legislature for action. 13

As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and
have often become in effect extensive codes of laws intended to operate directly upon the people in a manner
similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like
that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a
constitutional mandate, the presumption now is that all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. 14 This can be cataclysmic. That is why the
prevailing view is, as it has always been, that

. . . in case of doubt, the Constitution should be considered self-executing rather than non-selfexecuting . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed
implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is clearly not self-executing, as they
quote from discussions on the floor of the 1986 Constitutional Commission
MR. RODRIGO. Madam President, I am asking this question as the Chairman of the
Committee on Style. If the wording of "PREFERENCE" is given to QUALIFIED
FILIPINOS," can it be understood as a preference to qualified Filipinos vis-a-vis Filipinos
who are not qualified. So, why do we not make it clear? To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove the
word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as against whom?
As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
"QUALIFIED" because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on the setting
up of other financial structures, et cetera (emphasis supplied by respondents)

MR. RODRIGO. It is just a matter of style.

MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to make it appear that it is nonself-executing but simply for purposes of style. But, certainly, the legislature is not precluded from enacting other
further laws to enforce the constitutional provision so long as the contemplated statute squares with the Constitution.
Minor details may be left to the legislature without impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to facilitate the exercise of
powers directly granted by the constitution, further the operation of such a provision, prescribe a practice to be used
for its enforcement, provide a convenient remedy for the protection of the rights secured or the determination
thereof, or place reasonable safeguards around the exercise of the right. The mere fact that legislation may
supplement and add to or prescribe a penalty for the violation of a self-executing constitutional provision does not
render such a provision ineffective in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily an indication that it was not intended
to be self-executing. The rule is that a self-executing provision of the constitution does not necessarily exhaust
legislative power on the subject, but any legislation must be in harmony with the constitution, further the exercise of
constitutional right and make it more available. 17 Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.

Respondents also argue that the non-self-executing nature of Sec. 10, second par., of Art. XII is implied from the
tenor of the first and third paragraphs of the same section which undoubtedly are not self-executing. 18 The argument
is flawed. If the first and third paragraphs are not self-executing because Congress is still to enact measures to encourage
the formation and operation of enterprises fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its national jurisdiction, as in the third paragraph,
then a fortiori, by the same logic, the second paragraph can only be self-executing as it does not by its language require any
legislation in order to give preference to qualified Filipinos in the grant of rights, privileges and concessions covering the
national economy and patrimony. A constitutional provision may be self-executing in one part and non-self-executing in
another. 19

Even the cases cited by respondents holding that certain constitutional provisions are merely statements of
principles and policies, which are basically not self-executing and only placed in the Constitution as moral incentives
to legislation, not as judicially enforceable rights are simply not in point. Basco v. Philippine Amusements and
Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the sanctity of family life, 22 the vital role
of the youth in nation-building 23 the promotion of social justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human rights 27 and on education. 28 Lastly,
Kilosbayan, Inc. v. Morato 29 cites provisions on the promotion of general welfare, 30 the sanctity of family life, 31 the vital
role of the youth in nation-building 32 and the promotion of total human liberation and development. 33 A reading of these
provisions indeed clearly shows that they are not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only principles upon which the legislations must be based.
Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a mandatory, positive command
which is complete in itself and which needs no further guidelines or implementing laws or rules for its enforcement.
From its very words the provision does not require any legislation to put it in operation. It is per se judicially
enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and concessions covering
national economy and patrimony, the State shall give preference to qualified Filipinos, it means just that qualified
Filipinos shall be preferred. And when our Constitution declares that a right exists in certain specified circumstances
an action may be maintained to enforce such right notwithstanding the absence of any legislation on the subject;
consequently, if there is no statute especially enacted to enforce such constitutional right, such right enforces itself
by its own inherent potency and puissance, and from which all legislations must take their bearings. Where there is
a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional Commission 34 explains
The patrimony of the Nation that should be conserved and developed refers not only to out rich natural
resources but also to the cultural heritage of out race. It also refers to our intelligence in arts, sciences
and letters. Therefore, we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to heritage. 35 When the Constitution speaks
of national patrimony, it refers not only to the natural resources of the Philippines, as the Constitution could have very well

used the term natural resources, but also to the cultural heritage of the Filipinos.

Manila Hotel has become a landmark a living testimonial of Philippine heritage. While it was restrictively an
American hotel when it first opened in 1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which have shaped Philippine history. It was
called the Cultural Center of the 1930's. It was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine Government. it plays host to dignitaries and
official visitors who are accorded the traditional Philippine hospitality. 36
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart and Memory of a City. 37
During World War II the hotel was converted by the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the Japanese together with Intramuros as the two (2)
places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel became the center of political activities, playing
host to almost every political convention. In 1970 the hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat
where an aspirant for vice-president was "proclaimed" President of the Philippine Republic.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs and failures, loves and
frustrations of the Filipinos; its existence is impressed with public interest; its own historicity associated with our
struggle for sovereignty, independence and nationhood. Verily, Manila Hotel has become part of our national
economy and patrimony. For sure, 51% of the equity of the MHC comes within the purview of the constitutional
shelter for it comprises the majority and controlling stock, so that anyone who acquires or owns the 51% will have
actual control and management of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim that the
Filipino First Policy provision is not applicable since what is being sold is only 51% of the outstanding shares of the
corporation, not the Hotel building nor the land upon which the building stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution also includes corporations
at least 60% of which is owned by Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo amendment. And the
amendment would consist in substituting the words "QUALIFIED FILIPINOS" with the
following: "CITIZENS OF THE PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS
WHOSE CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we have to
raise a question. Suppose it is a corporation that is 80-percent Filipino, do we not give it
preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the preference
should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED FILIPINOS" may
refer only to individuals and not to juridical personalities or entities.
MR. MONSOD. We agree, Madam President. 39
xxx xxx xxx

MR. RODRIGO. Before we vote, may I request that the amendment be read again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS, PRIVILEGES

AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE

STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS." And the word
"Filipinos" here, as intended by the proponents, will include not only individual Filipinos but
also Filipino-controlled entities or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to please
restate his amendment so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL GIVE
PREFERENCE TO QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is qualified and a
Filipino enterprise is also qualified, will the Filipino enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino enterprise,
will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo continues
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be "SHALL THE STATE SHALL
GlVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the so-called "Filipino First" policy.
That means that Filipinos should be given preference in the grant of concessions, privileges and rights
covering the national patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the subject provision was still
further clarified by Commissioner Nolledo 43
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy . . . This provision was never found in previous
Constitutions . . . .
The term "qualified Filipinos" simply means that preference shall be given to those citizens who can
make a viable contribution to the common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an indiscriminate preference would be
counter productive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice has to be made
between a "qualified foreigner" end a "qualified Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by respondent GSIS and selected as
one of the qualified bidders. It was pre-qualified by respondent GSIS in accordance with its own guidelines so that
the sole inference here is that petitioner has been found to be possessed of proven management expertise in the
hotel industry, or it has significant equity ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that the subject provision is not selfexecutory and requires implementing legislation is quite disturbing. The attempt to violate a clear constitutional
provision by the government itself is only too distressing. To adopt such a line of reasoning is to renounce the
duty to ensure faithfulness to the Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the source of a judicial remedy. We cannot
simply afford the government a defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional government is apt
The executive department has a constitutional duty to implement laws, including the Constitution, even

before Congress acts provided that there are discoverable legal standards for executive action.
When the executive acts, it must be guided by its own understanding of the constitutional command
and of applicable laws. The responsibility for reading and understanding the Constitution and the laws
is not the sole prerogative of Congress. If it were, the executive would have to ask Congress, or
perhaps the Court, for an interpretation every time the executive is confronted by a constitutional
command. That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the State, not to respondent GSIS which
by itself possesses a separate and distinct personality. This argument again is at best specious. It is undisputed that
the sale of 51% of the MHC could only be carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of
the assets of respondents GSIS and MHC a "state action." In constitutional jurisprudence, the acts of persons
distinct from the government are considered "state action" covered by the Constitution (1) when the activity it
engages in is a "public function;" (2) when the government is so significantly involved with the private actor as to
make the government responsible for his action; and, (3) when the government has approved or authorized the
action. It is evident that the act of respondent GSIS in selling 51% of its share in respondent MHC comes under the
second and third categories of "state action." Without doubt therefore the transaction. although entered into by
respondent GSIS, is in fact a transaction of the State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to the government as elements of
the State. After all, government is composed of three (3) divisions of power legislative, executive and judicial.
Accordingly, a constitutional mandate directed to the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional injunction is addressed among others to the
Executive Department and respondent GSIS, a government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the winning bidder. The bidding
rules expressly provide that the highest bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since the "Filipino First Policy provision of
the Constitution bestows preference on qualified Filipinos the mere tending of the highest bid is not an assurance
that the highest bidder will be declared the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the provisions of which are presumed to
be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional provision is, as it should be, impliedly
written in the bidding rules issued by respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts must conform with the fundamental
law of the land. Those which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or even the highest, bid. In fact, we cannot conceive of a stronger
reason than the constitutional injunction itself.

In the instant case, where a foreign firm submits the highest bid in a public bidding concerning the grant of rights,
privileges and concessions covering the national economy and patrimony, thereby exceeding the bid of a Filipino,
there is no question that the Filipino will have to be allowed to match the bid of the foreign entity. And if the Filipino
matches the bid of a foreign firm the award should go to the Filipino. It must be so if we are to give life and meaning
to the Filipino First Policy provision of the 1987 Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign investors. But the
Constitution and laws of the Philippines are understood to be always open to public scrutiny. These are given factors
which investors must consider when venturing into business in a foreign jurisdiction. Any person therefore desiring
to do business in the Philippines or with any of its agencies or instrumentalities is presumed to know his rights and
obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale to Renong Berhad since
petitioner was well aware from the beginning that a foreigner could participate in the bidding is meritless.
Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But foreigners may be awarded the sale only
if no Filipino qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign entity. In the

case before us, while petitioner was already preferred at the inception of the bidding because of the constitutional
mandate, petitioner had not yet matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the
foreign firm and the apparent disregard by respondent GSIS of petitioner's matching bid did the latter have a cause
of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps the award has been finally
made. To insist on selling the Manila Hotel to foreigners when there is a Filipino group willing to match the bid of the
foreign group is to insist that government be treated as any other ordinary market player, and bound by its mistakes
or gross errors of judgment, regardless of the consequences to the Filipino people. The miscomprehension of the
Constitution is regrettable. Thus we would rather remedy the indiscretion while there is still an opportunity to do so
than let the government develop the habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad pursuant to the bidding rules,
respondent GSIS is left with no alternative but to award to petitioner the block of shares of MHC and to execute the
necessary agreements and documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute the corresponding
documents with petitioner as provided in the bidding rules after the latter has matched the bid of the Malaysian firm
clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987 Constitution not merely to
be used as a guideline for future legislation but primarily to be enforced; so must it be enforced. This Court as the
ultimate guardian of the Constitution will never shun, under any reasonable circumstance, the duty of upholding the
majesty of the Constitution which it is tasked to defend. It is worth emphasizing that it is not the intention of this
Court to impede and diminish, much less undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly sanctions the preference for Filipinos
whenever such preference is ordained by the Constitution. The position of the Court on this matter could have not
been more appropriately articulated by Chief Justice Narvasa
As scrupulously as it has tried to observe that it is not its function to substitute its judgment for that of
the legislature or the executive about the wisdom and feasibility of legislation economic in nature, the
Supreme Court has not been spared criticism for decisions perceived as obstacles to economic
progress and development . . . in connection with a temporary injunction issued by the Court's First
Division against the sale of the Manila Hotel to a Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that injunction "again demonstrates that the Philippine legal
system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as the judge of whether they are viable or attainable, it is
its bounden duty to make sure that they do not violate the Constitution or the laws, or are not adopted
or implemented with grave abuse of discretion amounting to lack or excess of jurisdiction. It will never
shirk that duty, no matter how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and preventing further losses,
regardless of the character of the asset, should not take precedence over non-material values. A commercial, nay
even a budgetary, objective should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to the Constitution in the
proper governance of a free society; after all, there is nothing so sacrosanct in any economic policy as to draw itself
beyond judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and republican state, with
sovereignty residing in the Filipino people and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold to the highest bidder
solely for the sake of privatization. We are not talking about an ordinary piece of property in a commercial district.
We are talking about a historic relic that has hosted many of the most important events in the short history of the
Philippines as a nation. We are talking about a hotel where heads of states would prefer to be housed as a strong
manifestation of their desire to cloak the dignity of the highest state function to their official visits to the Philippines.
Thus the Manila Hotel has played and continues to play a significant role as an authentic repository of twentieth
century Philippine history and culture. In this sense, it has become truly a reflection of the Filipino soul a place

with a history of grandeur; a most historical setting that has played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents to sell the historical
landmark this Grand Old Dame of hotels in Asia to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in whatever manner
viewed, a veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask: What advantage,
which cannot be equally drawn from a qualified Filipino, can be gained by the Filipinos Manila Hotel and all that it
stands for is sold to a non-Filipino? How much of national pride will vanish if the nation's cultural heritage is
entrusted to a foreign entity? On the other hand, how much dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified, zealous and well-meaning Filipino? This is the plain and simple
meaning of the Filipino First Policy provision of the Philippine Constitution. And this Court, heeding the clarion call of
the Constitution and accepting the duty of being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to purchase the subject 51% of
the shares of the Manila Hotel Corporation at P44.00 per share and thereafter to execute the necessary clearances
and to do such other acts and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the ponencia of Mr. Justice Bellosillo. At the same time, I would like to expound a bit more on the
concept of national patrimony as including within its scope and meaning institutions such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under "national patrimony" over which qualified Filipinos have
the preference, in ownership and operation. The Constitutional provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987 Constitution, "national patrimony" consists of the
natural resources provided by Almighty God (Preamble) in our territory (Article I) consisting of land, sea, and air. 2
study of the 1935 Constitution, where the concept of "national patrimony" originated, would show that its framers decided to
adopt the even more comprehensive expression "Patrimony of the Nation" in the belief that the phrase encircles a concept
embracing not only their natural resources of the country but practically everything that belongs to the Filipino people, the
tangible and the material as well as the intangible and the spiritual assets and possessions of the people. It is to be noted
that the framers did not stop with conservation. They knew that conservation alone does not spell progress; and that this may
be achieved only through development as a correlative factor to assure to the people not only the exclusive ownership, but
also the exclusive benefits of their national patrimony). 3

Moreover, the concept of national patrimony has been viewed as referring not only to our rich natural resources but
also to the cultural heritage of our
race. 4
There is no doubt in my mind that the Manila Hotel is very much a part of our national patrimony and, as such,
deserves constitutional protection as to who shall own it and benefit from its operation. This institution has played an
important role in our nation's history, having been the venue of many a historical event, and serving as it did, and as

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 118295 May 2, 1997

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and as
taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of Representatives and
as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as taxpayers; CIVIL LIBERTIES
UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION, CENTER FOR ALTERNATIVE
DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of various taxpayers and as non-governmental
organizations, petitioners,
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON ALVAREZ, AGAPITO
AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA, JOSE LINA, GLORIA.
MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN OSMEA, SANTANINA RASUL, RAMON
REVILLA, RAUL ROCO, FRANCISCO TATAD and FREDDIE WEBB, in their respective capacities as members
of the Philippine Senate who concurred in the ratification by the President of the Philippines of the
Agreement Establishing the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary
of Budget and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his capacity as
Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of Finance; ROBERTO
ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO T. GUINGONA, in his capacity as
Executive Secretary, respondents.

PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business and economic relations amongst states. It has
irreversibly propelled the world towards trade liberalization and economic globalization. Liberalization, globalization,
deregulation and privatization, the third-millennium buzz words, are ushering in a new borderless world of business
by sweeping away as mere historical relics the heretofore traditional modes of promoting and protecting national
economies like tariffs, export subsidies, import quotas, quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific industries in a market-driven and export-oriented
global scenario are replacing age-old "beggar-thy-neighbor" policies that unilaterally protect weak and inefficient
domestic producers of goods and services. In the words of Peter Drucker, the well-known management guru,
"Increased participation in the world economy has become the key to domestic economic growth and prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the establishment
of three multilateral institutions inspired by that grand political body, the United Nations were discussed at
Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to address the rehabilitation
and reconstruction of war-ravaged and later developing countries; the second, the International Monetary Fund
(IMF) which was to deal with currency problems; and the third, the International Trade Organization (ITO), which
was to foster order and predictability in world trade and to minimize unilateral protectionist policies that invite
challenge, even retaliation, from other states. However, for a variety of reasons, including its non-ratification by the
United States, the ITO, unlike the IMF and WB, never took off. What remained was only GATT the General

Agreement on Tariffs and Trade. GATT was a collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the Tokyo Round
and the Uruguay Round, the world finally gave birth to that administering body the World Trade Organization
with the signing of the "Final Act" in Marrakesh, Morocco and the ratification of the WTO Agreement by its members.
1

Like many other developing countries, the Philippines joined WTO as a founding member with the goal, as
articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving "Philippine access to foreign
markets, especially its major trading partners, through the reduction of tariffs on its exports, particularly agricultural
and industrial products." The President also saw in the WTO the opening of "new opportunities for the services
sector . . . , (the reduction of) costs and uncertainty associated with exporting . . . , and (the attraction of) more
investments into the country." Although the Chief Executive did not expressly mention it in his letter, the Philippines
and this is of special interest to the legal profession will benefit from the WTO system of dispute settlement by
judicial adjudication through the independent WTO settlement bodies called (1) Dispute Settlement Panels and (2)
Appellate Tribunal. Heretofore, trade disputes were settled mainly through negotiations where solutions were arrived
at frequently on the basis of relative bargaining strengths, and where naturally, weak and underdeveloped countries
were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place nationals and products of member-countries on
the same footing as Filipinos and local products" and (2) that the WTO "intrudes, limits and/or impairs" the
constitutional powers of both Congress and the Supreme Court, the instant petition before this Court assails the
WTO Agreement for violating the mandate of the 1987 Constitution to "develop a self-reliant and independent
national economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote
the preferential use of Filipino labor, domestic materials and locally produced goods."
Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade liberalization and
economic globalization? Does it proscribe Philippine integration into a global economy that is liberalized,
deregulated and privatized? These are the main questions raised in this petition for certiorari, prohibition and
mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization (WTO Agreement, for brevity) and (2) for the prohibition of its
implementation and enforcement through the release and utilization of public funds, the assignment of public
officials and employees, as well as the use of government properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is embodied in Senate Resolution No. 97, dated December
14, 1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary of The Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations (Final
Act, for brevity).
By signing the Final Act, 2 Secretary Navarro on behalf of the Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from the
President of the Philippines, 3 stating among others that "the Uruguay Round Final Act is hereby submitted to the Senate
for its concurrence pursuant to Section 21, Article VII of the Constitution."

On August 13, 1994, the members of the Philippine Senate received another letter from the President of the
Philippines 4 likewise dated August 11, 1994, which stated among others that "the Uruguay Round Final Act, the Agreement
Establishing the World Trade Organization, the Ministerial Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the Senate for its concurrence pursuant to Section 21, Article VII
of the Constitution."

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption of P.S.

1083, a resolution entitled "Concurring in the Ratification of the Agreement Establishing the World Trade
Organization." 5
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which "Resolved, as it is hereby resolved,
that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines of the Agreement
Establishing the World Trade Organization." 6 The text of the WTO Agreement is written on pages 137 et seq. of Volume I
of the 36-volume Uruguay Round of Multilateral Trade Negotiations and includes various agreements and associated legal
instruments (identified in the said Agreement as Annexes 1, 2 and 3 thereto and collectively referred to as Multilateral Trade
Agreements, for brevity) as follows:

ANNEX 1
Annex 1A: Multilateral Agreement on Trade in Goods
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture
Agreement on the Application of Sanitary and
Phytosanitary Measures
Agreement on Textiles and Clothing
Agreement on Technical Barriers to Trade
Agreement on Trade-Related Investment Measures
Agreement on Implementation of Article VI of he
General Agreement on Tariffs and Trade
1994
Agreement on Implementation of Article VII of the
General on Tariffs and Trade 1994
Agreement on Pre-Shipment Inspection
Agreement on Rules of Origin
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
Measures
Agreement on Safeguards
Annex 1B: General Agreement on Trade in Services and Annexes
Annex 1C: Agreement on Trade-Related Aspects of Intellectual
Property Rights
ANNEX 2
Understanding on Rules and Procedures Governing
the Settlement of Disputes
ANNEX 3
Trade Policy Review Mechanism
On December 16, 1994, the President of the Philippines signed 7 the Instrument of Ratification, declaring:
NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines,
after having seen and considered the aforementioned Agreement Establishing the World Trade
Organization and the agreements and associated legal instruments included in Annexes one (1), two
(2) and three (3) of that Agreement which are integral parts thereof, signed at Marrakesh, Morocco on
15 April 1994, do hereby ratify and confirm the same and every Article and Clause thereof.
To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the Agreement
Proper and "the associated legal instruments included in Annexes one (1), two (2) and three (3) of that Agreement
which are integral parts thereof."
On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement (and its
integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the Understanding
on Commitments in Financial Services. In his Memorandum dated May 13, 1996, 8 the Solicitor General describes
these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range

of matters, such as measures in favor of least developed countries, notification procedures, relationship
of WTO with the International Monetary Fund (IMF), and agreements on technical barriers to trade and
on dispute settlement.
The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access,
national treatment, and definitions of non-resident supplier of financial services, commercial presence
and new financial service.
On December 29, 1994, the present petition was filed. After careful deliberation on respondents' comment and
petitioners' reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and the
parties thereafter filed their respective memoranda. The court also requested the Honorable Lilia R. Bautista, the
Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a paper, hereafter referred
to as "Bautista Paper," 9 for brevity, (1) providing a historical background of and (2) summarizing the said agreements.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior
to the Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and
(2) copies of the multi-volume WTO Agreement and other documents mentioned in the Final Act, as
soon as possible.
After receipt of the foregoing documents, the Court said it would consider the case submitted for resolution. In a
Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the 36-volume Uruguay
Round of Multilateral Trade Negotiations, and in another Compliance dated October 24, 1996, he listed the various
"bilateral or multilateral treaties or international instruments involving derogation of Philippine sovereignty."
Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:
A. Whether the petition presents a political question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate who participated in the deliberations and voting
leading to the concurrence are estopped from impugning the validity of the Agreement Establishing the
World Trade Organization or of the validity of the concurrence.
C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine Constitution.
D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict
and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI, 1987
Philippine Constitution is "vested in the Congress of the Philippines";
E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.
F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionallyinfirm Agreement Establishing the World Trade Organization.
G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to
lack or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing
the World Trade Organization, and not with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.
On the other hand, the Solicitor General as counsel for respondents "synthesized the several issues raised by
petitioners into the following": 10
1. Whether or not the provisions of the "Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of

that agreement" cited by petitioners directly contravene or undermine the letter, spirit and intent of
Section 19, Article II and Sections 10 and 12, Article XII of the 1987 Constitution.
2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of
legislative power by Congress.
3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this
Honorable Court in promulgating the rules of evidence.
4. Whether or not the concurrence of the Senate "in the ratification by the President of the Philippines
of the Agreement establishing the World Trade Organization" implied rejection of the treaty embodied in
the Final Act.
By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General has
effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not justiciable;
(2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng) are estopped
from joining this suit; and (3) whether the respondent-members of the Senate acted in grave abuse of discretion
when they voted for concurrence in the ratification of the WTO Agreement. The foregoing notwithstanding, this Court
resolved to deal with these three issues thus:
(1) The "political question" issue being very fundamental and vital, and being a matter that probes into the very
jurisdiction of this Court to hear and decide this case was deliberated upon by the Court and will thus be ruled
upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in respondents'
favor, will not cause the petition's dismissal as there are petitioners other than the two senators, who are not
vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as an
integral part of the disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the respondents did not question the locus standi of
petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably realized that
grave constitutional issues, expenditures of public funds and serious international commitments of the nation are
involved here, and that transcendental public interest requires that the substantive issues be met head on and
decided on the merits, rather than skirted or deflected by procedural matters. 11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED,
DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS NO
JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES CONTRAVENE
SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF JUDICIAL
POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed
the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate) remains to assure that the supremacy of the

Constitution is upheld." 12 Once a "controversy as to the application or interpretation of a constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide." 13

The jurisdiction of this Court to adjudicate the matters 14 raised in the petition is clearly set out in the 1987 Constitution,
15 as follows:

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.
The foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of discretion on
the part of any branch or instrumentality of government including Congress. It is an innovation in our political law. 16
As explained by former Chief Justice Roberto Concepcion, 17 "the judiciary is the final arbiter on the question of 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. This is not only a judicial power but a duty to pass
judgment on matters of this nature."

As this Court has repeatedly and firmly emphasized in many cases, 18 it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the
vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials. On this, we have no equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this Court will not review the wisdom of the
decision of the President and the Senate in enlisting the country into the WTO, or pass upon the merits of trade
liberalization as a policy espoused by said international body. Neither will it rule on the propriety of the government's
economic policy of reducing/removing tariffs, taxes, subsidies, quantitative restrictions, and other import/trade
barriers. Rather, it will only exercise its constitutional duty "to determine whether or not there had been a grave
abuse of discretion amounting to lack or excess of jurisdiction" on the part of the Senate in ratifying the WTO
Agreement and its three annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of the Constitution mandating "economic nationalism"
are violated by the so-called "parity provisions" and "national treatment" clauses scattered in various parts not only
of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations and in the
Understanding on Commitments in Financial Services.
Specifically, the "flagship" constitutional provisions referred to are Sec 19, Article II, and Secs. 10 and 12, Article XII,
of the Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
xxx xxx xxx
Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled
by Filipinos.
xxx xxx xxx
Article XII

NATIONAL ECONOMY AND PATRIMONY

xxx xxx xxx
Sec. 10. . . . The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
xxx xxx xxx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally
produced goods, and adopt measures that help make them competitive.
Petitioners aver that these sacred constitutional principles are desecrated by the following WTO provisions quoted in
their memorandum: 19
a) In the area of investment measures related to trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights and obligations under GATT 1994, no Member shall
apply any TRIM that is inconsistent with the provisions of Article II or Article XI of GATT
1994.
2. An illustrative list of TRIMS that are inconsistent with the obligations of general
elimination of quantitative restrictions provided for in paragraph I of Article XI of GATT
1994 is contained in the Annex to this Agreement." (Agreement on Trade-Related
Investment Measures, Vol. 27, Uruguay Round, Legal Instruments, p. 22121, emphasis
supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph 4 of
Article III of GATT 1994 include those which are mandatory or enforceable under domestic law or under
administrative rulings, or compliance with which is necessary to obtain an advantage, and which
require:
(a) the purchase or use by an enterprise of products of domestic origin or from any
domestic source, whether specified in terms of particular products, in terms of volume or
value of products, or in terms of proportion of volume or value of its local production; or
(b) that an enterprise's purchases or use of imported products be limited to an amount
related to the volume or value of local products that it exports.
2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:
(a) the importation by an enterprise of products used in or related to the local production
that it exports;
(b) the importation by an enterprise of products used in or related to its local production by
restricting its access to foreign exchange inflows attributable to the enterprise; or
(c) the exportation or sale for export specified in terms of particular products, in terms of
volume or value of products, or in terms of a preparation of volume or value of its local
production. (Annex to the Agreement on Trade-Related Investment Measures, Vol. 27,

Uruguay Round Legal Documents, p. 22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:
The products of the territory of any contracting party imported into the territory of any other
contracting party shall be accorded treatment no less favorable than that accorded to like
products of national origin in respect of laws, regulations and requirements affecting their
internal sale, offering for sale, purchase, transportation, distribution or use, the provisions
of this paragraph shall not prevent the application of differential internal transportation
charges which are based exclusively on the economic operation of the means of transport
and not on the nationality of the product." (Article III, GATT 1947, as amended by the
Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84
in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1,
Uruguay Round, Legal Instruments p. 177, emphasis supplied).
(b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):
Each Member shall accord to the nationals of other Members treatment no less favourable
than that it accords to its own nationals with regard to the protection of intellectual
property. . . (par. 1 Article 3, Agreement on Trade-Related Aspect of Intellectual Property
rights, Vol. 31, Uruguay Round, Legal Instruments, p. 25432 (emphasis supplied)
(c) In the area of the General Agreement on Trade in Services:
National Treatment
1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications
set out therein, each Member shall accord to services and service suppliers of any other
Member, in respect of all measures affecting the supply of services, treatment no less
favourable than it accords to its own like services and service suppliers.
2. A Member may meet the requirement of paragraph I by according to services and
service suppliers of any other Member, either formally suppliers of any other Member,
either formally identical treatment or formally different treatment to that it accords to its
own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less
favourable if it modifies the conditions of completion in favour of services or service
suppliers of the Member compared to like services or service suppliers of any other
Member. (Article XVII, General Agreement on Trade in Services, Vol. 28, Uruguay Round
Legal Instruments, p. 22610 emphasis supplied).
It is petitioners' position that the foregoing "national treatment" and "parity provisions" of the WTO Agreement "place
nationals and products of member countries on the same footing as Filipinos and local products," in contravention of
the "Filipino First" policy of the Constitution. They allegedly render meaningless the phrase "effectively controlled by
Filipinos." The constitutional conflict becomes more manifest when viewed in the context of the clear duty imposed
on the Philippines as a WTO member to ensure the conformity of its laws, regulations and administrative procedures
with its obligations as provided in the annexed agreements. 20 Petitioners further argue that these provisions contravene
constitutional limitations on the role exports play in national development and negate the preferential treatment accorded to
Filipino labor, domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are not selfexecuting and merely set out general policies; (2) that these nationalistic portions of the Constitution invoked by
petitioners should not be read in isolation but should be related to other relevant provisions of Art. XII, particularly
Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with Constitution; and (4) that
the WTO Agreement contains sufficient provisions to protect developing countries like the Philippines from the
harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this
article in the 1935 Constitution 21 is called the "basic political creed of the nation" by Dean Vicente Sinco. 22 These

principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. 23 They are
used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment
of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, 24 the principles and state policies enumerated
in Article II and some sections of Article XII are not "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."

In the same light, we held in Basco vs. Pagcor 25 that broad constitutional principles need legislative enactments to
implement the, thus:

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also that these are merely statements
of principles and policies. As such, they are basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing principles
ready for enforcement through the courts. They were rather directives addressed to the
executive and to the legislature. If the executive and the legislature failed to heed the
directives of the article, the available remedy was not judicial but political. The electorate
could express their displeasure with the failure of the executive and the legislature through
the language of the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged infringement of board constitutional principles are sourced
from basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of
social and economic policy making." Mr. Justice Florentino P. Feliciano in his concurring opinion in Oposa vs.
Factoran, Jr., 26 explained these reasons as follows:
My suggestion is simply that petitioners must, before the trial court, show a more specific legal right
a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution
that is or may be violated by the actions, or failures to act, imputed to the public respondent by
petitioners so that the trial court can validly render judgment grating all or part of the relief prayed for.
To my mind, the court should be understood as simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the general policy principles found in the
Constitution and the existence of the Philippine Environment Code, and that the trial court should have
given petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings on a
motion to dismiss.
It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons.
One is that unless the legal right claimed to have been violated or disregarded is given specification in
operational terms, defendants may well be unable to defend themselves intelligently and effectively; in
other words, there are due process dimensions to this matter.
The second is a broader-gauge consideration where a specific violation of law or applicable
regulation is not alleged or proved, petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution
which reads:
Sec. 1. . . .
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)
When substantive standards as general as "the right to a balanced and healthy ecology" and "the right
to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion
amounting to lack or excess of jurisdiction," the result will be, it is respectfully submitted, to propel
courts into the uncharted ocean of social and economic policy making. At least in respect of the vast
area of environmental protection and management, our courts have no claim to special technical
competence and experience and professional qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making departments the legislative and executive
departments must be given a real and effective opportunity to fashion and promulgate those norms

and standards, and to implement them before the courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles relating to the
national economy and patrimony, should be read and understood in relation to the other sections in said article,
especially Secs. 1 and 13 thereof which read:
Sec. 1. The goals of the national economy are a more equitable distribution of opportunities, income,
and wealth; a sustained increase in the amount of goods and services produced by the nation for the
benefit of the people; and an expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
The State shall promote industrialization and full employment based on sound agricultural development
and agrarian reform, through industries that make full and efficient use of human and natural
resources, and which are competitive in both domestic and foreign markets. However, the State shall
protect Filipino enterprises against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given
optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic development, as
follows:
1. A more equitable distribution of opportunities, income and wealth;
2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the people;
and
3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by expressing
preference in favor of qualified Filipinos "in the grant of rights, privileges and concessions covering the national
economy and patrimony" 27 and in the use of "Filipino labor, domestic materials and locally-produced goods"; (2) by
mandating the State to "adopt measures that help make them competitive; 28 and (3) by requiring the State to "develop a
self-reliant and independent national economy effectively controlled by Filipinos." 29 In similar language, the Constitution
takes into account the realities of the outside world as it requires the pursuit of "a trade policy that serves the general welfare
and utilizes all forms and arrangements of exchange on the basis of equality ad reciprocity"; 30 and speaks of industries
"which are competitive in both domestic and foreign markets" as well as of the protection of "Filipino enterprises against
unfair foreign competition and trade practices."

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et al., 31 this Court
held that "Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive command which is complete in itself
and which needs no further guidelines or implementing laws or rule for its enforcement. From its very words the provision
does not require any legislation to put it in operation. It is per se judicially enforceable." However, as the constitutional
provision itself states, it is enforceable only in regard to "the grants of rights, privileges and concessions covering national
economy and patrimony" and not to every aspect of trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule,
there are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO
Agreement. And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at
the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and
reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are
unfair. 32 In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign
investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage
the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to

Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect weak and
developing economies, which comprise the vast majority of its members. Unlike in the UN where major states have
permanent seats and veto powers in the Security Council, in the WTO, decisions are made on the basis of
sovereign equality, with each member's vote equal in weight to that of any other. There is no WTO equivalent of the
UN Security Council.
WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and
the General Council shall be taken by the majority of the votes cast, except in cases of interpretation of
the Agreement or waiver of the obligation of a member which would require three fourths vote.
Amendments would require two thirds vote in general. Amendments to MFN provisions and the
Amendments provision will require assent of all members. Any member may withdraw from the
Agreement upon the expiration of six months from the date of notice of withdrawals. 33
Hence, poor countries can protect their common interests more effectively through the WTO than through one-onone negotiations with developed countries. Within the WTO, developing countries can form powerful blocs to push
their economic agenda more decisively than outside the Organization. This is not merely a matter of practical
alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the WTO Agreement
recognize the need of developing countries like the Philippines to "share in the growth in international trade
commensurate with the needs of their economic development." These basic principles are found in the preamble 34
of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with
a view to raising standards of living, ensuring full employment and a large and steadily growing volume
of real income and effective demand, and expanding the production of and trade in goods and services,
while allowing for the optimal use of the world's resources in accordance with the objective of
sustainable development, seeking both to protect and preserve the environment and to enhance the
means for doing so in a manner consistent with their respective needs and concerns at different levels
of economic development,
Recognizing further that there is need for positive efforts designed to ensure that developing countries,
and especially the least developed among them, secure a share in the growth in international trade
commensurate with the needs of their economic development,
Being desirous of contributing to these objectives by entering into reciprocal and mutually
advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade
and to the elimination of discriminatory treatment in international trade relations,
Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization
efforts, and all of the results of the Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to further the objectives underlying this multilateral
trading system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles, the WTO
Agreement grants developing countries a more lenient treatment, giving their domestic industries some protection
from the rush of foreign competition. Thus, with respect to tariffs in general, preferential treatment is given to
developing countries in terms of the amount of tariff reduction and the period within which the reduction is to be
spread out. Specifically, GATT requires an average tariff reduction rate of 36% for developed countries to be
effected within a period of six (6) years while developing countries including the Philippines are required to
effect an average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to agricultural
products by 20% over six (6) years, as compared to only 13% for developing countries to be effected within ten (10)
years.
In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their budgetary

outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a period of six (6)
years. For developing countries, however, the reduction rate is only two-thirds of that prescribed for developed
countries and a longer period of ten (10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices including
anti-dumping measures, countervailing measures and safeguards against import surges. Where local businesses
are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There is hardly therefore
any basis for the statement that under the WTO, local industries and enterprises will all be wiped out and that
Filipinos will be deprived of control of the economy. Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there would be no basis to say that in joining the WTO, the
respondents have gravely abused their discretion. True, they have made a bold decision to steer the ship of state
into the yet uncharted sea of economic liberalization. But such decision cannot be set aside on the ground of grave
abuse of discretion, simply because we disagree with it or simply because we believe only in other economic
policies. As earlier stated, the Court in taking jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It will only perform its constitutional duty of determining
whether the Senate committed grave abuse of discretion.
Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and independent national economy" 35 does not necessarily
rule out the entry of foreign investments, goods and services. It contemplates neither "economic seclusion" nor "mendicancy
in the international community." As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this
constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly aware of

overdependence on external assistance for even its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding mendicancy in the international community.
Independence refers to the freedom from undue foreign control of the national economy, especially in
such strategic industries as in the development of natural resources and public utilities. 36
The WTO reliance on "most favored nation," "national treatment," and "trade without discrimination" cannot be
struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members.
Aside from envisioning a trade policy based on "equality and reciprocity," 37 the fundamental law encourages industries
that are "competitive in both domestic and foreign markets," thereby demonstrating a clear policy against a sheltered
domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best
in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete
internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated
the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers,

Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it
contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign
competition. On the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer
the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the
question boils down to whether WTO/GATT will favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general welfare because it will as promised by its promoters
expand the country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable rates to
the Filipino public?
The responses to these questions involve "judgment calls" by our policy makers, for which they are answerable to
our people during appropriate electoral exercises. Such questions and the answers thereto are not subject to judicial
pronouncements based on grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in 1987. That

does not mean however that the Charter is necessarily flawed in the sense that its framers might not have
anticipated the advent of a borderless world of business. By the same token, the United Nations was not yet in
existence when the 1935 Constitution became effective. Did that necessarily mean that the then Constitution might
not have contemplated a diminution of the absoluteness of sovereignty when the Philippines signed the UN Charter,
thereby effectively surrendering part of its control over its foreign relations to the decisions of various UN organs like
the Security Council?
It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of contemporary
events. They should be interpreted to cover even future and unknown circumstances. It is to the credit of its drafters
that a Constitution can withstand the assaults of bigots and infidels but at the same time bend with the refreshing
winds of change necessitated by unfolding events. As one eminent political law writer and respected jurist 38
explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base
and frame-work only of the edifice that is yet to rise. It is but the core of the dream that must take
shape, not in a twinkling by mandate of our delegates, but slowly "in the crucible of Filipino minds and
hearts," where it will in time develop its sinews and gradually gather its strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise full-grown from the brow of
the Constitutional Convention, nor can it conjure by mere fiat an instant Utopia. It must grow with the
society it seeks to re-structure and march apace with the progress of the race, drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from becoming a petrified rule, a
pulsing, living law attuned to the heartbeat of the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure the conformity of its laws, regulations and
administrative procedures with its obligations as provided in the annexed Agreements." 39 Petitioners maintain that
this undertaking "unduly limits, restricts and impairs Philippine sovereignty, specifically the legislative power which under Sec.
2, Article VI of the 1987 Philippine Constitution is vested in the Congress of the Philippines. It is an assault on the sovereign
powers of the Philippines because this means that Congress could not pass legislation that will be good for our national
interest and general welfare if such legislation will not conform with the WTO Agreement, which not only relates to the trade
in goods . . . but also to the flow of investments and money . . . as well as to a whole slew of agreements on socio-cultural
matters . . . 40

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is lodged in the
Congress. 41 And while the Constitution allows Congress to authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts, such authority is subject to "specified limits and . . . such
limitations and restrictions" as Congress may provide, 42 as in fact it did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this
issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic
level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or
impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type
isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution
"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." 43 By the doctrine of incorporation, the
country is bound by generally accepted principles of international law, which are considered to be automatically part of our
own laws. 44 One of the oldest and most fundamental rules in international law is pacta sunt servanda international
agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally
binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its
legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." 45

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations
may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a
convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted
objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus,
treaties have been used to record agreements between States concerning such widely diverse matters as, for
example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct
of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down
of rules governing conduct in peace and the establishment of international organizations. 46 The sovereignty of a state

therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations
imposed by the very nature of membership in the family of nations and (2) limitations imposed by treaty stipulations. As aptly
put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age
of interdependence is here." 47

UN Charter and Other Treaties

Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to restrict its
sovereign rights under the "concept of sovereignty as auto-limitation." 47-A Under Article 2 of the UN Charter, "(a)ll
members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and
shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action."
Such assistance includes payment of its corresponding share not merely in administrative expenses but also in expenditures
for the peace-keeping operations of the organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by the United Nations Emergency Force in the Middle East and in the Congo were "expenses
of the United Nations" under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to appropriate. It is
compelled to appropriate funds whether it agrees with such peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another example: although "sovereign equality" and "domestic jurisdiction"
of all members are set forth as underlying principles in the UN Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance of international peace and security under Chapter VII of the
Charter. A final example: under Article 103, "(i)n the event of a conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under any other international agreement, their obligation under the
present charter shall prevail," thus unquestionably denying the Philippines as a member the sovereign power to make a
choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts both bilateral and
multilateral that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor General in
his Compliance dated October 24, 1996, as follows:
(a) Bilateral convention with the United States regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines by, among others, the
Federal Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas
Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries and
similar remunerations paid by the United States to its citizens for labor and personal services
performed by them as employees or officials of the United States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation
with respect to taxes on income.
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with said aircrafts.
(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils,
spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the
same privileges as those granted to Japanese and Korean air carriers under separate air service
agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted
Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the Philippines
not exceeding 59 days.
(i) Bilateral agreement with France exempting French nationals from the requirement of obtaining
transit and visitor visa for a sojourn not exceeding 59 days.
(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special

Missions in the Philippines are inviolable and its agents can not enter said premises without consent of
the Head of Mission concerned. Special Missions are also exempted from customs duties, taxes and
related charges.
(k) Multilateral convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.
(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign powers of
taxation, eminent domain and police power. The underlying consideration in this partial surrender of sovereignty is
the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the
Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTOGATT.
International treaties, whether relating to nuclear disarmament, human rights, the environment, the law
of the sea, or trade, constrain domestic political sovereignty through the assumption of external
obligations. But unless anarchy in international relations is preferred as an alternative, in most cases
we accept that the benefits of the reciprocal obligations involved outweigh the costs associated with
any loss of political sovereignty. (T)rade treaties that structure relations by reference to durable, welldefined substantive norms and objective dispute resolution procedures reduce the risks of larger
countries exploiting raw economic power to bully smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller countries typically stand to gain disproportionately
from trade liberalization. This is due to the simple fact that liberalization will provide access to a larger
set of potential new trading relationship than in case of the larger country gaining enhanced success to
the smaller country's market. 48
The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without violating the
Constitution, based on the rationale 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 . . . cooperation and amity with all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the Agreement on
Trade-Related Aspects of Intellectual Property Rights (TRIPS) 49 intrudes on the power of the Supreme Court to
promulgate rules concerning pleading, practice and procedures. 50

To understand the scope and meaning of Article 34, TRIPS, 51 it will be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred
to in paragraph 1 (b) of Article 28, if the subject matter of a patent is a process for obtaining a product,
the judicial authorities shall have the authority to order the defendant to prove that the process to obtain
an identical product is different from the patented process. Therefore, Members shall provide, in at
least one of the following circumstances, that any identical product when produced without the consent
of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by
the patented process:
(a) if the product obtained by the patented process is new;
(b) if there is a substantial likelihood that the identical product was made by the process
and the owner of the patent has been unable through reasonable efforts to determine the
process actually used.
2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the
alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.
From the above, a WTO Member is required to provide a rule of disputable (not the words "in the absence of proof
to the contrary") presumption that a product shown to be identical to one produced with the use of a patented
process shall be deemed to have been obtained by the (illegal) use of the said patented process, (1) where such
product obtained by the patented product is new, or (2) where there is "substantial likelihood" that the identical
product was made with the use of the said patented process but the owner of the patent could not determine the
exact process used in obtaining such identical product. Hence, the "burden of proof" contemplated by Article 34
should actually be understood as the duty of the alleged patent infringer to overthrow such presumption. Such
burden, properly understood, actually refers to the "burden of evidence" (burden of going forward) placed on the
producer of the identical (or fake) product to show that his product was produced without the use of the patented
process.
The foregoing notwithstanding, the patent owner still has the "burden of proof" since, regardless of the presumption
provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the existence of the alleged
identical product, the fact that it is "identical" to the genuine one produced by the patented process and the fact of
"newness" of the genuine product or the fact of "substantial likelihood" that the identical product was made by the
patented process.
The foregoing should really present no problem in changing the rules of evidence as the present law on the subject,
Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar presumption in cases of
infringement of patented design or utility model, thus:
Sec. 60. Infringement. Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the
article or product and in the making, using or selling of the article or product copying the patented
design or utility model. Identity or substantial identity with the patented design or utility model shall
constitute evidence of copying. (emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption applies only if (1)
the product obtained by the patented process in NEW or (2) there is a substantial likelihood that the identical
product was made by the process and the process owner has not been able through reasonable effort to determine
the process used. Where either of these two provisos does not obtain, members shall be free to determine the
appropriate method of implementing the provisions of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our disposition of the third issue derogation of legislative
power will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than justifies such
intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden, consistent as it is with
due process and the concept of adversarial dispute settlement inherent in our judicial system.
So too, since the Philippine is a signatory to most international conventions on patents, trademarks and copyrights,
the adjustment in legislation and rules of procedure will not be substantial. 52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes but not in the other
documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the Understanding on
Commitments in Financial Services is defective and insufficient and thus constitutes abuse of discretion. They
submit that such concurrence in the WTO Agreement alone is flawed because it is in effect a rejection of the Final
Act, which in turn was the document signed by Secretary Navarro, in representation of the Republic upon authority
of the President. They contend that the second letter of the President to the Senate 53 which enumerated what
constitutes the Final Act should have been the subject of concurrence of the Senate.

"A final act, sometimes called protocol de cloture, is an instrument which records the winding up of the proceedings
of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference." 54 It is
not the treaty itself. It is rather a summary of the proceedings of a protracted conference which may have taken place over
several years. The text of the "Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations" is
contained in just one page 55 in Vol. I of the 36-volume Uruguay Round of Multilateral Trade Negotiations. By signing said
Final Act, Secretary Navarro as representative of the Republic of the Philippines undertook:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent

authorities with a view to seeking approval of the Agreement in accordance with their procedures; and
(b) to adopt the Ministerial Declarations and Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required from its
signatories, namely, concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were approved
by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the members can meet
"to give effect to those provisions of this Agreement which invoke joint action, and generally with a view to facilitating
the operation and furthering the objectives of this Agreement." 56
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to the
Philippines. It applies only to those 27 Members which "have indicated in their respective schedules of commitments
on standstill, elimination of monopoly, expansion of operation of existing financial service suppliers, temporary entry
of personnel, free transfer and processing of information, and national treatment with respect to access to payment,
clearing systems and refinancing available in the normal course of business." 57
On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed included as its
integral parts, 58 as follows:
Article II
Scope of the WTO
1. The WTO shall provide the common institutional frame-work for the conduct of trade relations among
its Members in matters to the agreements and associated legal instruments included in the Annexes to
this Agreement.
2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3, (hereinafter
referred to as "Multilateral Agreements") are integral parts of this Agreement, binding on all Members.
3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
"Plurilateral Trade Agreements") are also part of this Agreement for those Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to
as "GATT 1994") is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory
Committee of the United Nations Conference on Trade and Employment, as subsequently rectified,
amended or modified (hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was concurring in as shown by the members'
deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, 59 the senators
of the Republic minutely dissected what the Senate was concurring in, as follows: 60

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day
hearing of this Committee yesterday. Was the observation made by Senator Taada that what was
submitted to the Senate was not the agreement on establishing the World Trade Organization by the
final act of the Uruguay Round which is not the same as the agreement establishing the World Trade
Organization? And on that basis, Senator Tolentino raised a point of order which, however, he agreed
to withdraw upon understanding that his suggestion for an alternative solution at that time was
acceptable. That suggestion was to treat the proceedings of the Committee as being in the nature of
briefings for Senators until the question of the submission could be clarified.
And so, Secretary Romulo, in effect, is the President submitting a new . . . is he making a new
submission which improves on the clarity of the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no
misunderstanding, it was his intention to clarify all matters by giving this letter.
THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones
that raised this question yesterday?
Senator Taada, please.
SEN. TAADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to
the Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the
World Trade Organization as well as the Ministerial Declarations and Decisions, and the Understanding
and Commitments in Financial Services.
I am now satisfied with the wording of the new submission of President Ramos.
SEN. TAADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him
Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I
saw the draft of his earlier, and I think it now complies with the provisions of the Constitution, and with
the Final Act itself . The Constitution does not require us to ratify the Final Act. It requires us to ratify
the Agreement which is now being submitted. The Final Act itself specifies what is going to be
submitted to with the governments of the participants.
In paragraph 2 of the Final Act, we read and I quote:
By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO
Agreement for the consideration of the respective competent authorities with a view to seeking
approval of the Agreement in accordance with their procedures.
In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification
or acceptance as whatever their constitutional procedures may provide but it is the World Trade
Organization Agreement. And if that is the one that is being submitted now, I think it satisfies both the
Constitution and the Final Act itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had
been adequately reflected in the journal of yesterday's session and I don't see any need for repeating
the same.
Now, I would consider the new submission as an act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on
this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the obvious and therefore I have
no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking this
Court's constitutionally imposed duty "to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the Senate in giving its concurrence therein via Senate
Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion may be issued by the
Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have no other plain, speedy and
adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. 61 Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of

law. 62 Failure on the part of the petitioner to show grave abuse of discretion will result in the dismissal of the petition. 63

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of two
sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional body
independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless convincing
proof and persuasive arguments are presented to overthrow such presumptions, this Court will resolve every doubt
in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and the presumption of
regularity in the Senate's processes, this Court cannot find any cogent reason to impute grave abuse of discretion to
the Senate's exercise of its power of concurrence in the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 64
It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent
national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic
materials and locally produced goods. But it is equally true that such principles while serving as judicial and
legislative guides are not in themselves sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a "trade policy that
serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity" and the promotion of industries "which are competitive in both domestic and foreign markets," thereby
justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative
and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of
the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations.
That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO
Agreement thereby making it "a part of the law of the land" is a legitimate exercise of its sovereign duty and power.
We find no "patent and gross" arbitrariness or despotism "by reason of passion or personal hostility" in such
exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with
petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is
not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would
constitute grave abuse in the exercise of our own judicial power and duty. Ineludably, what the Senate did was a
valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of
judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the
nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our
people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of
membership, should this be the political desire of a member.
The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian Renaissance 65 where
"the East will become the dominant region of the world economically, politically and culturally in the next century." He refers to
the "free market" espoused by WTO as the "catalyst" in this coming Asian ascendancy. There are at present about 31
countries including China, Russia and Saudi Arabia negotiating for membership in the WTO. Notwithstanding objections
against possible limitations on national sovereignty, the WTO remains as the only viable structure for multilateral trading and
the veritable forum for the development of international trade law. The alternative to WTO is isolation, stagnation, if not
economic self-destruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages of
globalization with its on-line experience, and endowed with a vision of the future, the Philippines now straddles the
crossroads of an international strategy for economic prosperity and stability in the new millennium. Let the people, through
their duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco, Hermosisima,
Jr. and Torres, Jr., JJ., concur.
Padilla and Vitug, JJ., concur in the result.
Footnotes
1 In Annex "A" of her Memorandum, dated August 8, 1996, received by this Court on August 12, 1996,
Philippine Ambassador to the United Nations, World Trade Organization and other international
organizations Lilia R. Bautista (hereafter referred to as "Bautista Paper") submitted a "46-year
Chronology" of GATT as follows:
1947 The birth of GATT. On 30 October 1947, the General Agreement on Tariffs and
Trade (GATT) was signed by 23 nations at the Palais des Nations in Geneva. The
Agreement contained tariff concessions agreed to in the first multilateral trade negotiations

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by
their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her
parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES,
minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V.
PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor,
represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO
and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and
IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA,
PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of
Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of
the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of
the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional
plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized

for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural
resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department
of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable
Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint 2 was instituted as
a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The
same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so
numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5
The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area
of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare
and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical
pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful
ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies,
such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as
of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire
island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading
to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by
the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the
siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of
supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's
capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so
capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic
and film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial
logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this
continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are
evident and incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph
6 hereof are already being felt, experienced and suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest
stands will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the natural resource property
he holds in trust for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled
to protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious
damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren
and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State
(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and wellbeing. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient
use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,
id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural law and
violative of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest
the unabated hemorrhage of the country's vital life support systems and continued rape of Mother
Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on
two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said
order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a
political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.)
No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept
of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely
on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that
the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may
be considered protected by the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the question of whether logging should be permitted in the
country is a political question which should be properly addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State
without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twentyfive (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90777 as a class suit. The original defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of

common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every
generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues
raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of
jurisdiction. The pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short
of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or
a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence
to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
This right unites with the right to health which is provided for in the preceding section of the same
article:
Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State

Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns
nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these
basic rights need not even be written in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of
its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day would not be too far when all else would
be lost not only for the present generation, but also for those to come generations which stand to inherit nothing
but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of pollution
air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily carries with it
the correlative duty of not impairing the same and, therefore, sanctions may be provided
for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management and conservation of the country's
forests.
Without such forests, the ecological or environmental balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which
expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and
lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable
use, development, management, renewal, and conservation of the country's forest, mineral, land, offshore areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future generations
as well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15
specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and the objective of making the exploration,
development and utilization of such natural resources equitably accessible to the different segments of
the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural

resources.
The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and
enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the
mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and
higher authority. Said section provides:
Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17 The latter
statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the
DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with
grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of
the defendant in violation of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a
cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the
point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough
to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or
determination by the executive or legislative branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that:

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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished
member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to
rule upon even the wisdom of the decisions of the executive and the legislature and to declare their
acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch,
of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand
or contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
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 revolving it under the expanded jurisdiction conferred upon us that
now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution
clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause
found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant
the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the
country and to cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored
(sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement.
In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the
non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by
providing undue and unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms and conditions
regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of
Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. A timber license is not a contract within the
purview of the due process clause; it is only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law
or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of
the police power of the state for the purpose of advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations
of contract is limited by the exercise of the police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co.
vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of the public to regulate it
in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. Nos. 171947-48

December 18, 2008

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, DEPARTMENT OF ENVIRONMENT AND NATURAL

RESOURCES, DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1 DEPARTMENT OF HEALTH,
DEPARTMENT OF AGRICULTURE, DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, DEPARTMENT OF
BUDGET AND MANAGEMENT, PHILIPPINE COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and joined by DIVINA V. ILAS, SABINIANO
ALBARRACIN, MANUEL SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO, MA. VICTORIA
LLENOS, DONNA CALOZA, FATIMA QUITAIN, VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE
LINTAG, HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and JAIME AGUSTIN R. OPOSA,
respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of climate change, has of late gained the attention of the
international community. Media have finally trained their sights on the ill effects of pollution, the destruction of forests
and other critical habitats, oil spills, and the unabated improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale few ever foresaw and the wound no longer simply heals
by itself.2 But amidst hard evidence and clear signs of a climate crisis that need bold action, the voice of cynicism,
naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the nature of their respective offices or by direct
statutory command, are tasked to protect and preserve, at the first instance, our internal waters, rivers, shores, and
seas polluted by human activities. To most of these agencies and their official complement, the pollution menace
does not seem to carry the high national priority it deserves, if their track records are to be the norm. Their cavalier
attitude towards solving, if not mitigating, the environmental pollution problem, is a sad commentary on bureaucratic
efficiency and commitment.
At the core of the case is the Manila Bay, a place with a proud historic past, once brimming with marine life and, for
so many decades in the past, a spot for different contact recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of people and institutions that could have otherwise made
a difference.
This case started when, on January 29, 1999, respondents Concerned Residents of Manila Bay filed a complaint
before the Regional Trial Court (RTC) in Imus, Cavite against several government agencies, among them the
petitioners, for the cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20 and docketed as
Civil Case No. 1851-99 of the RTC, the complaint alleged that the water quality of the Manila Bay had fallen way
below the allowable standards set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or commission [of the defendants]
resulting in the clear and present danger to public health and in the depletion and contamination of the marine
life of Manila Bay, [for which reason] ALL defendants must be held jointly and/or solidarily liable and be
collectively ordered to clean up Manila Bay and to restore its water quality to class B waters fit for swimming,
skin-diving, and other forms of contact recreation.3

In their individual causes of action, respondents alleged that the continued neglect of petitioners in abating the
pollution of the Manila Bay constitutes a violation of, among others:
(1) Respondents constitutional right to life, health, and a balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);
(8) Executive Order No. 192;
(9) The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to clean the Manila Bay and submit to
the RTC a concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila Yacht Club followed by an ocular inspection of the
Manila Bay. Renato T. Cruz, the Chief of the Water Quality Management Section, Environmental Management
Bureau, Department of Environment and Natural Resources (DENR), testifying for petitioners, stated that water
samples collected from different beaches around the Manila Bay showed that the amount of fecal coliform content
ranged from 50,000 to 80,000 most probable number (MPN)/ml when what DENR Administrative Order No. 34-90
prescribed as a safe level for bathing and other forms of contact recreational activities, or the "SB" level, is one not
exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS) and in behalf of other petitioners,
testified about the MWSS efforts to reduce pollution along the Manila Bay through the Manila Second Sewerage
Project. For its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its memorandum
circulars on the study being conducted on ship-generated waste treatment and disposal, and its Linis Dagat (Clean
the Ocean) project for the cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision5 in favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered ordering the abovenamed
defendant-government agencies, jointly and solidarily, to clean up and rehabilitate Manila Bay and restore its
waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation. To
attain this, defendant-agencies, with defendant DENR as the lead agency, are directed, within six (6) months
from receipt hereof, to act and perform their respective duties by devising a consolidated, coordinated and
concerted scheme of action for the rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate [sewerage] treatment facilities in
strategic places under its jurisdiction and increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide, construct and operate sewage
facilities for the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install, operate and maintain waste
facilities to rid the bay of toxic and hazardous substances.

Defendant PPA, to prevent and also to treat the discharge not only of ship-generated wastes but also of other
solid and liquid wastes from docking vessels that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and appropriate sanitary landfill and/or
adequate solid waste and liquid disposal as well as other alternative garbage disposal system such as re-use
or recycling of wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to revitalize the marine life in Manila
Bay and restock its waters with indigenous fish and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that obstruct the free flow of
waters to the bay. These nuisances discharge solid and liquid wastes which eventually end up in Manila Bay.
As the construction and engineering arm of the government, DPWH is ordered to actively participate in
removing debris, such as carcass of sunken vessels, and other non-biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and sludge companies and require
them to have proper facilities for the treatment and disposal of fecal sludge and sewage coming from septic
tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through education the importance of
preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all costs the Manila Bay from all
forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the Court of Appeals (CA) individual
Notices of Appeal which were eventually consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways (DPWH), Metropolitan Manila
Development Authority (MMDA), Philippine Coast Guard (PCG), Philippine National Police (PNP) Maritime Group,
and five other executive departments and agencies filed directly with this Court a petition for review under Rule 45.
The Court, in a Resolution of December 9, 2002, sent the said petition to the CA for consolidation with the
consolidated appeals of MWSS, LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent provisions of the Environment Code
(PD 1152) relate only to the cleaning of specific pollution incidents and do not cover cleaning in general. And apart
from raising concerns about the lack of funds appropriated for cleaning purposes, petitioners also asserted that the
cleaning of the Manila Bay is not a ministerial act which can be compelled by mandamus.
The CA Sustained the RTC
By a Decision6 of September 28, 2005, the CA denied petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require petitioners to do tasks outside of their usual basic
functions under existing laws.7
Petitioners are now before this Court praying for the allowance of their Rule 45 petition on the following ground and
supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED UPON BY THE
HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT SECTION
20 OF [PD] 1152 REQUIRES CONCERNED GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS
SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF SPECIFIC POLLUTION

INCIDENTS AND [DO] NOT COVER CLEANING IN GENERAL

II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A MINISTERIAL ACT OF
PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under the headings, Upgrading of Water
Quality and Clean-up Operations, envisage a cleanup in general or are they limited only to the cleanup of specific
pollution incidents? And second, can petitioners be compelled by mandamus to clean up and rehabilitate the Manila
Bay?
On August 12, 2008, the Court conducted and heard the parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial duty.8 A ministerial duty is one that
"requires neither the exercise of official discretion nor judgment."9 It connotes an act in which nothing is left to the
discretion of the person executing it. It is a "simple, definite duty arising under conditions admitted or proved to exist
and imposed by law."10 Mandamus is available to compel action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and maintain adequate solid waste and liquid disposal
systems necessarily involves policy evaluation and the exercise of judgment on the part of the agency concerned.
They argue that the MMDA, in carrying out its mandate, has to make decisions, including choosing where a landfill
should be located by undertaking feasibility studies and cost estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear and that petitioners duty to comply
with and act according to the clear mandate of the law does not require the exercise of discretion. According to
respondents, petitioners, the MMDA in particular, are without discretion, for example, to choose which bodies of
water they are to clean up, or which discharge or spill they are to contain. By the same token, respondents maintain
that petitioners are bereft of discretion on whether or not to alleviate the problem of solid and liquid waste disposal;
in other words, it is the MMDAs ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform their duties as defined by law, on one hand, and how
they are to carry out such duties, on the other, are two different concepts. While the implementation of the MMDAs
mandated tasks may entail a decision-making process, the enforcement of the law or the very act of doing what the
law exacts to be done is ministerial in nature and may be compelled by mandamus. We said so in Social Justice
Society v. Atienza11 in which the Court directed the City of Manila to enforce, as a matter of ministerial duty, its
Ordinance No. 8027 directing the three big local oil players to cease and desist from operating their business in the
so-called "Pandacan Terminals" within six months from the effectivity of the ordinance. But to illustrate with respect
to the instant case, the MMDAs duty to put up an adequate and appropriate sanitary landfill and solid waste and
liquid disposal as well as other alternative garbage disposal systems is ministerial, its duty being a statutory
imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of Republic Act No. (RA) 7924 creating the
MMDA. This section defines and delineates the scope of the MMDAs waste disposal services to include:
Solid waste disposal and management which include formulation and implementation of policies, standards,
programs and projects for proper and sanitary waste disposal. It shall likewise include the establishment and
operation of sanitary land fill and related facilities and the implementation of other alternative programs
intended to reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste Management Act (RA 9003) which
prescribes the minimum criteria for the establishment of sanitary landfills and Sec. 42 which provides the minimum
operating requirements that each site operator shall maintain in the operation of a sanitary landfill. Complementing
Sec. 41 are Secs. 36 and 37 of RA 9003,12 enjoining the MMDA and local government units, among others, after the
effectivity of the law on February 15, 2001, from using and operating open dumps for solid waste and disallowing,
five years after such effectivity, the use of controlled dumps.

The MMDAs duty in the area of solid waste disposal, as may be noted, is set forth not only in the Environment Code
(PD 1152) and RA 9003, but in its charter as well. This duty of putting up a proper waste disposal system cannot be
characterized as discretionary, for, as earlier stated, discretion presupposes the power or right given by law to public
functionaries to act officially according to their judgment or conscience.13 A discretionary duty is one that "allows a
person to exercise judgment and choose to perform or not to perform."14 Any suggestion that the MMDA has the
option whether or not to perform its solid waste disposal-related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners respective charters or like enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and preservation of the Manila Bay. They are
precluded from choosing not to perform these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192,15 is the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources. Sec. 19 of the
Philippine Clean Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the primary government
agency responsible for its enforcement and implementation, more particularly over all aspects of water quality
management. On water pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction "over all aspects of
water pollution, determine[s] its location, magnitude, extent, severity, causes and effects and other pertinent
information on pollution, and [takes] measures, using available methods and technologies, to prevent and abate
such pollution."
The DENR, under RA 9275, is also tasked to prepare a National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water Quality Management Area Action Plan which is nationwide in
scope covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the primary government agency responsible for the
implementation and enforcement of this Act x x x unless otherwise provided herein. As such, it shall have the
following functions, powers and responsibilities:
a) Prepare a National Water Quality Status report within twenty-four (24) months from the effectivity of this
Act: Provided, That the Department shall thereafter review or revise and publish annually, or as the need
arises, said report;
b) Prepare an Integrated Water Quality Management Framework within twelve (12) months following the
completion of the status report;
c) Prepare a ten (10) year Water Quality Management Area Action Plan within 12 months following the
completion of the framework for each designated water management area. Such action plan shall be
reviewed by the water quality management area governing board every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in the process of completing the
preparation of the Integrated Water Quality Management Framework.16 Within twelve (12) months thereafter, it has
to submit a final Water Quality Management Area Action Plan.17 Again, like the MMDA, the DENR should be made
to accomplish the tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that the DENR, with the assistance of
and in partnership with various government agencies and non-government organizations, has completed, as of
December 2005, the final draft of a comprehensive action plan with estimated budget and time frame, denominated
as Operation Plan for the Manila Bay Coastal Strategy, for the rehabilitation, restoration, and rehabilitation of the
Manila Bay.
The completion of the said action plan and even the implementation of some of its phases should more than ever
prod the concerned agencies to fast track what are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with jurisdiction, supervision, and control over all waterworks
and sewerage systems in the territory comprising what is now the cities of Metro Manila and several towns of the
provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be necessary for the proper
sanitation and other uses of the cities and towns comprising the System; x x x
(3) The LWUA under PD 198 has the power of supervision and control over local water districts. It can prescribe the
minimum standards and regulations for the operations of these districts and shall monitor and evaluate local water
standards. The LWUA can direct these districts to construct, operate, and furnish facilities and services for the

collection, treatment, and disposal of sewerage, waste, and storm water. Additionally, under RA 9275, the LWUA, as
attached agency of the DPWH, is tasked with providing sewerage and sanitation facilities, inclusive of the setting up
of efficient and safe collection, treatment, and sewage disposal system in the different parts of the country.19 In
relation to the instant petition, the LWUA is mandated to provide sewerage and sanitation facilities in Laguna,
Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of 1987 (EO 292),20 is designated as
the agency tasked to promulgate and enforce all laws and issuances respecting the conservation and proper
utilization of agricultural and fishery resources. Furthermore, the DA, under the Philippine Fisheries Code of 1998
(RA 8550), is, in coordination with local government units (LGUs) and other concerned sectors, in charge of
establishing a monitoring, control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis.21 Likewise under RA 9275, the DA is
charged with coordinating with the PCG and DENR for the enforcement of water quality standards in marine
waters.22 More specifically, its Bureau of Fisheries and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275
shall primarily be responsible for the prevention and control of water pollution for the development, management,
and conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national government, is tasked under EO 29223 to
provide integrated planning, design, and construction services for, among others, flood control and water resource
development systems in accordance with national development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to perform metro-wide services relating to
"flood control and sewerage management which include the formulation and implementation of policies, standards,
programs and projects for an integrated flood control, drainage and sewerage system."
On July 9, 2002, a Memorandum of Agreement was entered into between the DPWH and MMDA, whereby MMDA
was made the agency primarily responsible for flood control in Metro Manila. For the rest of the country, DPWH shall
remain as the implementing agency for flood control services. The mandate of the MMDA and DPWH on flood
control and drainage services shall include the removal of structures, constructions, and encroachments built along
rivers, waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard Law of 1974, and Sec. 6 of PD
979,24 or the Marine Pollution Decree of 1976, shall have the primary responsibility of enforcing laws, rules, and
regulations governing marine pollution within the territorial waters of the Philippines. It shall promulgate its own rules
and regulations in accordance with the national rules and policies set by the National Pollution Control Commission
upon consultation with the latter for the effective implementation and enforcement of PD 979. It shall, under Sec. 4
of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel, barge, or any other floating craft,
or other man-made structures at sea, by any method, means or manner, into or upon the territorial and inland
navigable waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown, discharged, or deposited either
from or out of any ship, barge, or other floating craft or vessel of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other
than that flowing from streets and sewers and passing therefrom in a liquid state into tributary of any
navigable water from which the same shall float or be washed into such navigable water; and
c. deposit x x x material of any kind in any place on the bank of any navigable water or on the bank of any
tributary of any navigable water, where the same shall be liable to be washed into such navigable water,
either by ordinary or high tides, or by storms or floods, or otherwise, whereby navigation shall or may be
impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government (DILG) Act of 1990 was signed into law
on December 13, 1990, the PNP Maritime Group was tasked to "perform all police functions over the Philippine
territorial waters and rivers." Under Sec. 86, RA 6975, the police functions of the PCG shall be taken over by the
PNP when the latter acquires the capability to perform such functions. Since the PNP Maritime Group has not yet
attained the capability to assume and perform the police functions of PCG over marine pollution, the PCG and PNP
Maritime Group shall coordinate with regard to the enforcement of laws, rules, and regulations governing marine
pollution within the territorial waters of the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.25

(8) In accordance with Sec. 2 of EO 513, the PPA is mandated "to establish, develop, regulate, manage and operate
a rationalized national port system in support of trade and national development."26 Moreover, Sec. 6-c of EO 513
states that the PPA has police authority within the ports administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives, without prejudice to the exercise of the functions of the
Bureau of Customs and other law enforcement bodies within the area. Such police authority shall include the
following:
xxxx
b) To regulate the entry to, exit from, and movement within the port, of persons and vehicles, as well as
movement within the port of watercraft.27
Lastly, as a member of the International Marine Organization and a signatory to the International Convention for the
Prevention of Pollution from Ships, as amended by MARPOL 73/78,28 the Philippines, through the PPA, must
ensure the provision of adequate reception facilities at ports and terminals for the reception of sewage from the
ships docking in Philippine ports. Thus, the PPA is tasked to adopt such measures as are necessary to prevent the
discharge and dumping of solid and liquid wastes and other ship-generated wastes into the Manila Bay waters from
vessels docked at ports and apprehend the violators. When the vessels are not docked at ports but within Philippine
territorial waters, it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain adequate sanitary landfill and solid waste
and liquid disposal system as well as other alternative garbage disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of RA 9003, which would necessary include its penal provisions,
within its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are frequently violated are dumping of waste
matters in public places, such as roads, canals or esteros, open burning of solid waste, squatting in open dumps
and landfills, open dumping, burying of biodegradable or non- biodegradable materials in flood-prone areas,
establishment or operation of open dumps as enjoined in RA 9003, and operation of waste management facilities
without an environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279), eviction or demolition may be
allowed "when persons or entities occupy danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks and playgrounds." The
MMDA, as lead agency, in coordination with the DPWH, LGUs, and concerned agencies, can dismantle and remove
all structures, constructions, and other encroachments built in breach of RA 7279 and other pertinent laws along the
rivers, waterways, and esteros in Metro Manila. With respect to rivers, waterways, and esteros in Bulacan, Bataan,
Pampanga, Cavite, and Laguna that discharge wastewater directly or eventually into the Manila Bay, the DILG shall
direct the concerned LGUs to implement the demolition and removal of such structures, constructions, and other
encroachments built in violation of RA 7279 and other applicable laws in coordination with the DPWH and
concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water Code), is tasked to promulgate rules
and regulations for the establishment of waste disposal areas that affect the source of a water supply or a reservoir
for domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in coordination with the DENR, DPWH, and
other concerned agencies, shall formulate guidelines and standards for the collection, treatment, and disposal of
sewage and the establishment and operation of a centralized sewage treatment system. In areas not considered as
highly urbanized cities, septage or a mix sewerage-septage management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of Sanitation of the Philippines, and Sec. 5.1.131 of Chapter XVII
of its implementing rules, the DOH is also ordered to ensure the regulation and monitoring of the proper disposal of
wastes by private sludge companies through the strict enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and disposal before these companies are issued their
environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment Code (PD 1152), is mandated to
integrate subjects on environmental education in its school curricula at all levels.32 Under Sec. 118 of RA 8550, the
DepEd, in collaboration with the DA, Commission on Higher Education, and Philippine Information Agency, shall
launch and pursue a nationwide educational campaign to promote the development, management, conservation,
and proper use of the environment. Under the Ecological Solid Waste Management Act (RA 9003), on the other
hand, it is directed to strengthen the integration of environmental concerns in school curricula at all levels, with an
emphasis on waste management principles.33

(12) The Department of Budget and Management (DBM) is tasked under Sec. 2, Title XVII of the Administrative
Code of 1987 to ensure the efficient and sound utilization of government funds and revenues so as to effectively
achieve the countrys development objectives.34
One of the countrys development objectives is enshrined in RA 9275 or the Philippine Clean Water Act of 2004.
This law stresses that the State shall pursue a policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine waters. It also provides that it is the policy
of the government, among others, to streamline processes and procedures in the prevention, control, and
abatement of pollution mechanisms for the protection of water resources; to promote environmental strategies and
use of appropriate economic instruments and of control mechanisms for the protection of water resources; to
formulate a holistic national program of water quality management that recognizes that issues related to this
management cannot be separated from concerns about water sources and ecological protection, water supply,
public health, and quality of life; and to provide a comprehensive management program for water pollution focusing
on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the noble objectives of RA 9275 in line
with the countrys development objectives.
All told, the aforementioned enabling laws and issuances are in themselves clear, categorical, and complete as to
what are the obligations and mandate of each agency/petitioner under the law. We need not belabor the issue that
their tasks include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code encompass the cleanup of water
pollution in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of water has deteriorated to a degree where its
state will adversely affect its best usage, the government agencies concerned shall take such measures as
may be necessary to upgrade the quality of such water to meet the prescribed water quality standards.
Section 20. Clean-up Operations.It shall be the responsibility of the polluter to contain, remove and cleanup water pollution incidents at his own expense. In case of his failure to do so, the government agencies
concerned shall undertake containment, removal and clean-up operations and expenses incurred in said
operations shall be charged against the persons and/or entities responsible for such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the subject, o, amended the counterpart provision
(Sec. 20) of the Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and 26 hereof, any person
who causes pollution in or pollutes water bodies in excess of the applicable and prevailing standards shall be
responsible to contain, remove and clean up any pollution incident at his own expense to the extent that the
same water bodies have been rendered unfit for utilization and beneficial use: Provided, That in the event
emergency cleanup operations are necessary and the polluter fails to immediately undertake the same, the
[DENR] in coordination with other government agencies concerned, shall undertake containment, removal
and cleanup operations. Expenses incurred in said operations shall be reimbursed by the persons found to
have caused such pollution under proper administrative determination x x x. Reimbursements of the cost
incurred shall be made to the Water Quality Management Fund or to such other funds where said
disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code is more apparent than real since the
amendment, insofar as it is relevant to this case, merely consists in the designation of the DENR as lead agency in
the cleanup operations.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code concern themselves only with the
matter of cleaning up in specific pollution incidents, as opposed to cleanup in general. They aver that the twin
provisions would have to be read alongside the succeeding Sec. 62(g) and (h), which defines the terms "cleanup
operations" and "accidental spills," as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants discharged or spilled in water

to restore it to pre-spill condition.

h. Accidental Spills [refer] to spills of oil or other hazardous substances in water that result from accidents
such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct the government agencies concerned
to undertake containment, removal, and cleaning operations of a specific polluted portion or portions of the body of
water concerned. They maintain that the application of said Sec. 20 is limited only to "water pollution incidents,"
which are situations that presuppose the occurrence of specific, isolated pollution events requiring the
corresponding containment, removal, and cleaning operations. Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires "cleanup operations" to restore the body of water to pre-spill condition, which
means that there must have been a specific incident of either intentional or accidental spillage of oil or other
hazardous substances, as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec. 62(g) as delimiting the application of
Sec. 20 to the containment, removal, and cleanup operations for accidental spills only. Contrary to petitioners
posture, respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec. 20. Respondents explain
that without its Sec. 62(g), PD 1152 may have indeed covered only pollution accumulating from the day-to-day
operations of businesses around the Manila Bay and other sources of pollution that slowly accumulated in the bay.
Respondents, however, emphasize that Sec. 62(g), far from being a delimiting provision, in fact even enlarged the
operational scope of Sec. 20, by including accidental spills as among the water pollution incidents contemplated in
Sec. 17 in relation to Sec. 20 of PD 1152.
To respondents, petitioners parochial view on environmental issues, coupled with their narrow reading of their
respective mandated roles, has contributed to the worsening water quality of the Manila Bay. Assuming,
respondents assert, that petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152 is
constricted by the definition of the phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17 is not hobbled by
such limiting definition. As pointed out, the phrases "cleanup operations" and "accidental spills" do not appear in
said Sec. 17, not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any way state that the government agencies
concerned ought to confine themselves to the containment, removal, and cleaning operations when a specific
pollution incident occurs. On the contrary, Sec. 17 requires them to act even in the absence of a specific pollution
incident, as long as water quality "has deteriorated to a degree where its state will adversely affect its best usage."
This section, to stress, commands concerned government agencies, when appropriate, "to take such measures as
may be necessary to meet the prescribed water quality standards." In fine, the underlying duty to upgrade the
quality of water is not conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates that it is properly applicable to a
specific situation in which the pollution is caused by polluters who fail to clean up the mess they left behind. In such
instance, the concerned government agencies shall undertake the cleanup work for the polluters account.
Petitioners assertion, that they have to perform cleanup operations in the Manila Bay only when there is a water
pollution incident and the erring polluters do not undertake the containment, removal, and cleanup operations, is
quite off mark. As earlier discussed, the complementary Sec. 17 of the Environment Code comes into play and the
specific duties of the agencies to clean up come in even if there are no pollution incidents staring at them.
Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext
that their cleanup mandate depends on the happening of a specific pollution incident. In this regard, what the CA
said with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as it is practical. The appellate
court wrote: "PD 1152 aims to introduce a comprehensive program of environmental protection and management.
This is better served by making Secs. 17 & 20 of general application rather than limiting them to specific pollution
incidents."35
Granting arguendo that petitioners position thus described vis--vis the implementation of Sec. 20 is correct, they
seem to have overlooked the fact that the pollution of the Manila Bay is of such magnitude and scope that it is wellnigh impossible to draw the line between a specific and a general pollution incident. And such impossibility extends
to pinpointing with reasonable certainty who the polluters are. We note that Sec. 20 of PD 1152 mentions "water
pollution incidents" which may be caused by polluters in the waters of the Manila Bay itself or by polluters in
adjoining lands and in water bodies or waterways that empty into the bay. Sec. 16 of RA 9275, on the other hand,
specifically adverts to "any person who causes pollution in or pollutes water bodies," which may refer to an
individual or an establishment that pollutes the land mass near the Manila Bay or the waterways, such that the
contaminants eventually end up in the bay. In this situation, the water pollution incidents are so numerous and
involve nameless and faceless polluters that they can validly be categorized as beyond the specific pollution incident
level.

Not to be ignored of course is the reality that the government agencies concerned are so undermanned that it would
be almost impossible to apprehend the numerous polluters of the Manila Bay. It may perhaps not be amiss to say
that the apprehension, if any, of the Manila Bay polluters has been few and far between. Hence, practically nobody
has been required to contain, remove, or clean up a given water pollution incident. In this kind of setting, it behooves
the Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD
1152, covers for all intents and purposes a general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial stage of the long-term solution.
The preservation of the water quality of the bay after the rehabilitation process is as important as the cleaning
phase. It is imperative then that the wastes and contaminants found in the rivers, inland bays, and other bodies of
water be stopped from reaching the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic
exercise, for, in no time at all, the Manila Bay water quality would again deteriorate below the ideal minimum
standards set by PD 1152, RA 9275, and other relevant laws. It thus behooves the Court to put the heads of the
petitioner-department-agencies and the bureaus and offices under them on continuing notice about, and to enjoin
them to perform, their mandates and duties towards cleaning up the Manila Bay and preserving the quality of its
water to the ideal level. Under what other judicial discipline describes as "continuing mandamus,"36 the Court may,
under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be
set to naught by administrative inaction or indifference. In India, the doctrine of continuing mandamus was used to
enforce directives of the court to clean up the length of the Ganges River from industrial and municipal pollution.37
The Court can take judicial notice of the presence of shanties and other unauthorized structures which do not have
septic tanks along the Pasig-Marikina-San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-Obando (Bulacan) Rivers,
the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor rivers and connecting
waterways, river banks, and esteros which discharge their waters, with all the accompanying filth, dirt, and garbage,
into the major rivers and eventually the Manila Bay. If there is one factor responsible for the pollution of the major
river systems and the Manila Bay, these unauthorized structures would be on top of the list. And if the issue of illegal
or unauthorized structures is not seriously addressed with sustained resolve, then practically all efforts to cleanse
these important bodies of water would be for naught. The DENR Secretary said as much.38
Giving urgent dimension to the necessity of removing these illegal structures is Art. 51 of PD 1067 or the Water
Code,39 which prohibits the building of structures within a given length along banks of rivers and other waterways.
Art. 51 reads:
The banks of rivers and streams and the shores of the seas and lakes throughout their entire length
and within a zone of three (3) meters in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement of public use in the interest of
recreation, navigation, floatage, fishing and salvage. No person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation, floatage, fishing or salvage or to build structures of
any kind. (Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial establishments standing along or near the
banks of the Pasig River, other major rivers, and connecting waterways. But while they may not be treated as
unauthorized constructions, some of these establishments undoubtedly contribute to the pollution of the Pasig River
and waterways. The DILG and the concerned LGUs, have, accordingly, the duty to see to it that non-complying
industrial establishments set up, within a reasonable period, the necessary waste water treatment facilities and
infrastructure to prevent their industrial discharge, including their sewage waters, from flowing into the Pasig River,
other major rivers, and connecting waterways. After such period, non-complying establishments shall be shut down
or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-agencies to comply with their
statutory tasks, we cite the Asian Development Bank-commissioned study on the garbage problem in Metro Manila,
the results of which are embodied in the The Garbage Book. As there reported, the garbage crisis in the
metropolitan area is as alarming as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas, Catmon and Rodriquez
dumpsites - generate an alarming quantity of lead and leachate or liquid run-off. Leachate are toxic liquids
that flow along the surface and seep into the earth and poison the surface and groundwater that are used for
drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of a large amount of human waste in the dump sites
and surrounding areas, which is presumably generated by households that lack alternatives to sanitation. To
say that Manila Bay needs rehabilitation is an understatement.

3. Most of the deadly leachate, lead and other dangerous contaminants and possibly strains of pathogens
seeps untreated into ground water and runs into the Marikina and Pasig River systems and Manila Bay.40
Given the above perspective, sufficient sanitary landfills should now more than ever be established as prescribed by
the Ecological Solid Waste Management Act (RA 9003). Particular note should be taken of the blatant violations by
some LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste.No open dumps shall be established
and operated, nor any practice or disposal of solid waste by any person, including LGUs which [constitute] the
use of open dumps for solid waste, be allowed after the effectivity of this Act: Provided, further that no
controlled dumps shall be allowed (5) years following the effectivity of this Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of five (5) years which ended on February
21, 2006 has come and gone, but no single sanitary landfill which strictly complies with the prescribed standards
under RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003, like littering, dumping of waste matters
in roads, canals, esteros, and other public places, operation of open dumps, open burning of solid waste, and the
like. Some sludge companies which do not have proper disposal facilities simply discharge sludge into the Metro
Manila sewerage system that ends up in the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275,
which enjoins the pollution of water bodies, groundwater pollution, disposal of infectious wastes from vessels, and
unauthorized transport or dumping into sea waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550
which proscribes the introduction by human or machine of substances to the aquatic environment including
"dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum of
carbonaceous materials/substances [and other] radioactive, noxious or harmful liquid, gaseous or solid substances,
from any water, land or air transport or other human-made structure."
In the light of the ongoing environmental degradation, the Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by law and the nature of their respective offices and
mandates.
The importance of the Manila Bay as a sea resource, playground, and as a historical landmark cannot be overemphasized. It is not yet too late in the day to restore the Manila Bay to its former splendor and bring back the
plants and sea life that once thrived in its blue waters. But the tasks ahead, daunting as they may be, could only be
accomplished if those mandated, with the help and cooperation of all civic-minded individuals, would put their minds
to these tasks and take responsibility. This means that the State, through petitioners, has to take the lead in the
preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or
imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate
that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their
basic functions in cleaning up and rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two
untenable claims: (1) that there ought to be a specific pollution incident before they are required to act; and (2) that
the cleanup of the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which explicitly provides that the State shall protect and
advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of
nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not
even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of
Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications.41 Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean
up the bay, they and the men and women representing them cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a
betrayal of the trust reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the CA in CA-G.R. CV No. 76528 and
SP No. 74944 and the September 13, 2002 Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or supervening events in the case. The fallo of the RTC
Decision shall now read:

WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-government agencies to

clean up, rehabilitate, and preserve Manila Bay, and restore and maintain its waters to SB level (Class B sea
waters per Water Classification Tables under DENR Administrative Order No. 34 [1990]) to make them fit for
swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency responsible for the conservation,
management, development, and proper use of the countrys environment and natural resources, and Sec. 19 of RA
9275, designating the DENR as the primary government agency responsible for its enforcement and
implementation, the DENR is directed to fully implement its Operational Plan for the Manila Bay Coastal Strategy for
the rehabilitation, restoration, and conservation of the Manila Bay at the earliest possible time. It is ordered to call
regular coordination meetings with concerned government departments and agencies to ensure the successful
implementation of the aforesaid plan of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management programs under Sec. 43 of the Philippine Environment
Code (PD 1152), shall direct all LGUs in Metro Manila, Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to
inspect all factories, commercial establishments, and private homes along the banks of the major river systems in
their respective areas of jurisdiction, such as but not limited to the Pasig-Marikina-San Juan Rivers, the NCR
(Paraaque-Zapote, Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-MarilaoObando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De Bay, and other minor
rivers and waterways that eventually discharge water into the Manila Bay; and the lands abutting the bay, to
determine whether they have wastewater treatment facilities or hygienic septic tanks as prescribed by existing laws,
ordinances, and rules and regulations. If none be found, these LGUs shall be ordered to require non-complying
establishments and homes to set up said facilities or septic tanks within a reasonable time to prevent industrial
wastes, sewage water, and human wastes from flowing into these rivers, waterways, esteros, and the Manila Bay,
under pain of closure or imposition of fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in Metro Manila, Rizal, and Cavite where needed at the earliest
possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local water districts and in coordination with the DENR, is
ordered to provide, install, operate, and maintain sewerage and sanitation facilities and the efficient and safe
collection, treatment, and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga, and Bataan
where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the BFAR, is ordered to improve and restore the marine life
of the Manila Bay. It is also directed to assist the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga,
and Bataan in developing, using recognized methods, the fisheries and aquatic resources in the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group, in accordance with Sec. 124 of
RA 8550, in coordination with each other, shall apprehend violators of PD 979, RA 8550, and other existing laws and
regulations designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the International Convention for the Prevention of Pollution from
Ships, the PPA is ordered to immediately adopt such measures to prevent the discharge and dumping of solid and
liquid wastes and other ship-generated wastes into the Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of programs and projects for flood control projects and
drainage services in Metro Manila, in coordination with the DPWH, DILG, affected LGUs, PNP Maritime Group,
Housing and Urban Development Coordinating Council (HUDCC), and other agencies, shall dismantle and remove
all structures, constructions, and other encroachments established or built in violation of RA 7279, and other
applicable laws along the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the
Navotas-Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in Metro Manila. The DPWH,
as the principal implementor of programs and projects for flood control services in the rest of the country more
particularly in Bulacan, Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected LGUs, PNP
Maritime Group, HUDCC, and other concerned government agencies, shall remove and demolish all structures,
constructions, and other encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the Laguna De

Bay, and other rivers, connecting waterways, and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary landfill, as prescribed by RA 9003,
within a period of one (1) year from finality of this Decision. On matters within its territorial jurisdiction and in
connection with the discharge of its duties on the maintenance of sanitary landfills and like undertakings, it is also
ordered to cause the apprehension and filing of the appropriate criminal cases against violators of the respective
penal provisions of RA 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge companies have the proper facilities for the treatment and
disposal of fecal sludge and sewage coming from septic tanks. The DOH shall give the companies, if found to be
non-complying, a reasonable time within which to set up the necessary facilities under pain of cancellation of its
environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550, and Sec. 56 of RA 9003,49 the DepEd shall integrate
lessons on pollution prevention, waste management, environmental protection, and like subjects in the school
curricula of all levels to inculcate in the minds and hearts of students and, through them, their parents and friends,
the importance of their duty toward achieving and maintaining a balanced and healthful ecosystem in the Manila Bay
and the entire Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the cleanup, restoration, and preservation of the water quality of
the Manila Bay, in line with the countrys development objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH, DBM, PCG, PNP Maritime Group,
DILG, and also of MWSS, LWUA, and PPA, in line with the principle of "continuing mandamus," shall, from finality of
this Decision, each submit to the Court a quarterly progressive report of the activities undertaken in accordance with
this Decision.
No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

DANTE O. TINGA
Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
ARTURO D. BRION
Associate Justice

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 190293

March 20, 2012

PHILIP SIGFRID A. FORTUN and ALBERT LEE G. ANGELES, Petitioners,

vs.
GLORIA MACAPAGAL-ARROYO, as Commander-in-Chief and President of the Republic of the Philippines,
EDUARDO ERMITA, Executive Secretary, ARMED FORCES OF THE PHILIPPINES (AFP), or any of their units,
PHILIPPINE NATIONAL POLICE (PNP), or any of their units, JOHN DOES and JANE DOES acting under their
direction and control, Respondents.
x-----------------------x
G.R. No. 190294
DIDAGEN P. DILANGALEN, Petitioner,
vs.
EDUARDO R. ERMITA in his capacity as Executive Secretary, NORBERTO GONZALES in his capacity as
Secretary of National Defense, RONALDO PUNO in his capacity as Secretary of Interior and Local
Government, Respondents.
x-----------------------x
G.R. No. 190301
NATIONAL UNION OF PEOPLES' LAWYERS (NUPL) SECRETARY GENERAL NERI JAVIER COLMENARES,
BAYAN MUNA REPRESENTATIVE SATUR C. OCAMPO, GABRIELA WOMEN'S PARTY REPRESENTATIVE
LIZA L. MAZA, ATTY. JULIUS GARCIA MATIBAG, ATTY. EPHRAIM B. CORTEZ, ATTY. JOBERT ILARDE
PAHILGA, ATTY. VOLTAIRE B. AFRICA, BAGONG ALYANSANG MAKABAYAN (BAYAN) SECRETARY
GENERAL RENATO M. REYES, JR. and ANTHONY IAN CRUZ, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY EDUARDO R. ERMITA, ARMED
FORCES OF THE PHILIPPINES CHIEF OF STAFF GENERAL VICTOR S. IBRADO, PHILIPPINE NATIONAL
POLICE DIRECTOR GENERAL JESUS A. VERZOSA, DEPARTMENT OF JUSTICE SECRETARY AGNES VST
DEVANADERA, ARMED FORCES OF THE PHILIPPINES EASTERN MINDANAO COMMAND CHIEF
LIEUTENANT GENERAL RAYMUNDO B. FERRER, Respondents.
x-----------------------x
G.R. No. 190302
JOSEPH NELSON Q. LOYOLA, Petitioner,
vs.
HER EXCELLENCY PRESIDENT GLORIA MACAPAGAL-ARROYO, ARMED FORCES CHIEF OF STAFF
GENERAL VICTOR IBRADO, PHILIPPINE NATIONAL POLICE (PNP), DIRECTOR GENERAL JESUS
VERZOSA, EXECUTIVE SECRETARY EDUARDO ERMITA, Respondents.
x-----------------------x
G.R. No. 190307
JOVITO R. SALONGA, RAUL C. PANGALANGAN, H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, EMILIO
CAPULONG, FLORIN T. HILBAY, ROMEL R. BAGARES, DEXTER DONNE B. DIZON, ALLAN JONES F.

LARDIZABAL and GILBERT T. ANDRES, suing as taxpayers and as CONCERNED Filipino citizens,
Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in his (sic) capacity as President of the Republic of the Philippines, HON.
EDUARDO ERMITA, JR., in his capacity as Executive Secretary, and HON. ROLANDO ANDAYA in his
capacity as Secretary of the Department of Budget and Management, GENERAL VICTOR IBRADO, in his
capacity as Armed Forces of the Philippines Chief of Staff, DIRECTOR JESUS VERZOSA, in his capacity as
Chief of the Philippine National Police, Respondents.
x-----------------------x
G.R. No. 190356
BAILENG S. MANTAWIL, DENGCO SABAN, Engr. OCTOBER CHIO, AKBAYAN PARTY LIST
REPRESENTATIVES WALDEN F. BELLO and ANA THERESIA HONTIVEROS-BARAQUEL, LORETTA ANN P.
ROSALES, MARVIC M.V.F. LEONEN, THEODORE O. TE and IBARRA M. GUTIERREZ III, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF JUSTICE,
THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, and THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 190380
CHRISTIAN MONSOD and CARLOS P. MEDINA, JR., Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.
DECISION
ABAD, J.:
These cases concern the constitutionality of a presidential proclamation of martial law and suspension of the
privilege of habeas corpus in 2009 in a province in Mindanao which were withdrawn after just eight days.
The Facts and the Case
The essential background facts are not in dispute. On November 23, 2009 heavily armed men, believed led by the
ruling Ampatuan family, gunned down and buried under shoveled dirt 57 innocent civilians on a highway in
Maguindanao. In response to this carnage, on November 24 President Arroyo issued Presidential Proclamation
1946, declaring a state of emergency in Maguindanao, Sultan Kudarat, and Cotabato City to prevent and suppress
similar lawless violence in Central Mindanao.
Believing that she needed greater authority to put order in Maguindanao and secure it from large groups of persons
that have taken up arms against the constituted authorities in the province, on December 4, 2009 President Arroyo
issued Presidential Proclamation 1959 declaring martial law and suspending the privilege of the writ of habeas
corpus in that province except for identified areas of the Moro Islamic Liberation Front.
Two days later or on December 6, 2009 President Arroyo submitted her report to Congress in accordance with
Section 18, Article VII of the 1987 Constitution which required her, within 48 hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, to submit to that body a report in person or in
writing of her action.
In her report, President Arroyo said that she acted based on her finding that lawless men have taken up arms in
Maguindanao and risen against the government. The President described the scope of the uprising, the nature,
quantity, and quality of the rebels weaponry, the movement of their heavily armed units in strategic positions, the
closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu Unsay Municipal Hall, and 14 other
municipal halls, and the use of armored vehicles, tanks, and patrol cars with unauthorized "PNP/Police" markings.
On December 9, 2009 Congress, in joint session, convened pursuant to Section 18, Article VII of the 1987
Constitution to review the validity of the Presidents action. But, two days later or on December 12 before Congress
could act, the President issued Presidential Proclamation 1963, lifting martial law and restoring the privilege of the
writ of habeas corpus in Maguindanao.

Petitioners Philip Sigfrid A. Fortun and the other petitioners in G.R. 190293, 190294, 190301,190302, 190307,
190356, and 190380 brought the present actions to challenge the constitutionality of President Arroyos
Proclamation 1959 affecting Maguindanao. But, given the prompt lifting of that proclamation before Congress could
review it and before any serious question affecting the rights and liberties of Maguindanaos inhabitants could arise,
the Court deems any review of its constitutionality the equivalent of beating a dead horse.
Prudence and respect for the co-equal departments of the government dictate that the Court should be cautious in
entertaining actions that assail the constitutionality of the acts of the Executive or the Legislative department. The
issue of constitutionality, said the Court in Biraogo v. Philippine Truth Commission of 2010,1 must be the very issue
of the case, that the resolution of such issue is unavoidable.
The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:
One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas
corpus before the joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the
same. The pertinent provisions of Section 18, Article VII of the 1987 Constitution state:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of writ of habeas
corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without any need of a call.
xxxx
Although the above vests in the President the power to proclaim martial law or suspend the privilege of the writ of
habeas corpus, he shares such power with the Congress. Thus:
1. The Presidents proclamation or suspension is temporary, good for only 60 days;
2. He must, within 48 hours of the proclamation or suspension, report his action in person or in writing to
Congress;
3. Both houses of Congress, if not in session must jointly convene within 24 hours of the proclamation or
suspension for the purpose of reviewing its validity; and
4. The Congress, voting jointly, may revoke or affirm the Presidents proclamation or suspension, allow their
limited effectivity to lapse, or extend the same if Congress deems warranted.
It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power
to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only
sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only
the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the
President does not have.
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express
duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The
constitutional validity of the Presidents proclamation of martial law or suspension of the writ of habeas corpus is first
a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.
Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact
convened, could act on the same. Consequently, the petitions in these cases have become moot and the Court has
nothing to review. The lifting of martial law and restoration of the privilege of the writ of habeas corpus in
Maguindanao was a supervening event that obliterated any justiciable controversy.2

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of
habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the
operation and control of local government units in Maguindanao. The President did not issue any law or decree
affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been
reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no
petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The point is
that the President intended by her action to address an uprising in a relatively small and sparsely populated
province. In her judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and
amply armed government presence.
In Lansang v. Garcia,3 the Court received evidence in executive session to determine if President Marcos
suspension of the privilege of the writ of habeas corpus in 1971 had sufficient factual basis. In Aquino, Jr. v. Enrile,4
while the Court took judicial notice of the factual bases for President Marcos proclamation of martial law in 1972, it
still held hearings on the petitions for habeas corpus to determine the constitutionality of the arrest and detention of
the petitioners. Here, however, the Court has not bothered to examine the evidence upon which President Arroyo
acted in issuing Proclamation 1959, precisely because it felt no need to, the proclamation having been withdrawn
within a few days of its issuance.
Justice Antonio T. Carpio points out in his dissenting opinion the finding of the Regional Trial Court (RTC) of Quezon
City that no probable cause exist that the accused before it committed rebellion in Maguindanao since the
prosecution failed to establish the elements of the crime. But the Court cannot use such finding as basis for striking
down the Presidents proclamation and suspension. For, firstly, the Court did not delegate and could not delegate to
the RTC of Quezon City its power to determine the factual basis for the presidential proclamation and suspension.
Secondly, there is no showing that the RTC of Quezon City passed upon the same evidence that the President, as
Commander-in-Chief of the Armed Forces, had in her possession when she issued the proclamation and
suspension.
The Court does not resolve purely academic questions to satisfy scholarly interest, however intellectually
challenging these are.5 This is especially true, said the Court in Philippine Association of Colleges and Universities
v. Secretary of Education,6 where the issues "reach constitutional dimensions, for then there comes into play regard
for the courts duty to avoid decision of constitutional issues unless avoidance becomes evasion." The Courts duty
is to steer clear of declaring unconstitutional the acts of the Executive or the Legislative department, given the
assumption that it carefully studied those acts and found them consistent with the fundamental law before taking
them. "To doubt is to sustain."7
Notably, under Section 18, Article VII of the 1987 Constitution, the Court has only 30 days from the filing of an
appropriate proceeding to review the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus. Thus
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)
More than two years have passed since petitioners filed the present actions to annul Proclamation 1959. When the
Court did not decide it then, it actually opted for a default as was its duty, the question having become moot and
academic.
1wphi1

Justice Carpio of course points out that should the Court regard the powers of the President and Congress
respecting the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus as
sequential or joint, it would be impossible for the Court to exercise its power of review within the 30 days given it.
But those 30 days, fixed by the Constitution, should be enough for the Court to fulfill its duty without pre-empting
congressional action. Section 18, Article VII, requires the President to report his actions to Congress, in person or in
writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without
need of a call within 24 hours following the Presidents proclamation or suspension. Clearly, the Constitution calls for
quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient
time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its
issuance.
If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within
the short time expected of it, then the Court can step in, hear the petitions challenging the Presidents action, and
ascertain if it has a factual basis. If the Court finds none, then it can annul the proclamation or the suspension. But
what if the 30 days given it by the Constitution proves inadequate? Justice Carpio himself offers the answer in his

dissent: that 30-day period does not operate to divest this Court of its jurisdiction over the case. The settled rule is
that jurisdiction once acquired is not lost until the case has been terminated.
The problem in this case is that the President aborted the proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in Maguindanao in just eight days. In a real sense, the proclamation and the
suspension never took off. The Congress itself adjourned without touching the matter, it having become moot and
academic.
Of course, the Court has in exceptional cases passed upon issues that ordinarily would have been regarded as
moot. But the present cases do not present sufficient basis for the exercise of the power of judicial review. The
proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in this case, unlike
similar Presidential acts in the late 60s and early 70s, appear more like saber-rattling than an actual deployment and
arbitrary use of political power.
WHEREFORE, the Court DISMISSES the consolidated petitions on the ground that the same have become moot
and academic.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
1 G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78, 147-148.

2 See Funa v. Ermita, G.R. No. 184740, February 11, 2010, 612 SCRA 308, 319.
3 149 Phil. 547 (1971).
4 158-A Phil. 1 (1974).
5 Sec. Guingona, Jr. v. Court of Appeals, 354 Phil. 415, 426 (1998).
6 97 Phil. 806, 811 (1955), citing Rice v. Sioux City, U.S. Sup. Ct. Adv. Rep., May 23, 1955, Law Ed., Vol. 99,

p. 511.
7 Board of Optometry v. Colet, 328 Phil. 1187, 1207 (1996), citing Drilon v. Lim, G.R. No. 112497, August 4,

1994, 235 SCRA 135, 140.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
CARPIO, J.:
I dissent.
The Cases
These are consolidated petitions for the writs of certiorari and prohibition challenging the constitutionality of
Presidential Proclamation No. 1959, which declared a state of martial law and suspended the privilege of the writ of
habeas corpus in the Province of Maguindanao, except for identified areas of the Moro Islamic Liberation Front.
The Antecedents
In the morning of 23 November 2009, fifty-seven (57) innocent civilians met their tragic and untimely death in a
gruesome massacre unequaled in recent history,1 considered to be the Philippines worst case of election-related
violence. Brutally killed were female family members of then Buluan Vice Mayor Esmael "Toto" Mangudadatu
(Mangudadatu), including his wife and sisters, and members of the press who were part of a convoy on the way to
Shariff Aguak in Maguindanao. Mangudadatus wife was bringing with her Mangudadatus certificate of candidacy
for Governor of Maguindanao for filing with the Provincial Office of the Commission on Elections in Shariff Aguak.
Five of the victims were not part of the convoy but happened to be traveling on the same highway.2
In its Consolidated Comment dated 14 December 2009, the Office of the Solicitor General (OSG), representing
public respondents, narrated the harrowing events which unfolded on that fateful day of 23 November 2009, to wit:
xxxx
3. Vice Mayor Mangudadatu confirmed having received reports that his political rivals (Ampatuans) were
planning to kill him upon his filing of a certificate of candidacy (COC) for the gubernatorial seat in
Maguindanao. Believing that the presence of women and media personalities would deter any violent assault,
he asked his wife and female relatives to file his COC and invited several media reporters to cover the event.
4. At around 10 a.m., the convoy stopped at a designated PNP checkpoint along the highway of Ampatuan,
Maguindanao manned by the Maguindanao 1508th Provincial Mobile Group, particularly, Eshmail Canapia
and Takpan Dilon. While at a stop, they were approached by about one hundred (100) armed men. The
armed men pointed their weapons at the members of the 1508th Provincial Mobile Group manning the check
point, and threatened them to refrain from interfering. The members of the convoy were then ordered to alight
from their vehicles and to lie face down on the ground, as the armed men forcibly took their personal
belongings. Subsequently, all members of the convoy were ordered to board their vehicles. They were
eventually brought by the armed men to the hills in Barangay Masalay, Ampatuan, about 2.5 kilometers from
the checkpoint.
5. At about the same time, Vice Mayor Mangudadatu received a call from his wife Genelyn who, in a trembling
voice, told him that a group of more or less 100 armed men stopped their convoy, and that Datu Unsay Mayor
Andal Ampatuan, Jr. was walking towards her, and was about to slap her face. After those last words were

uttered, the phone line went dead and her cellphone could not be contacted any longer. Alarmed that his wife
and relatives, as well as the media personalities were in grave danger, Vice Mayor Mangudadatu immediately
reported the incident to the Armed Forces of the Philippines.
6. In the afternoon of the same day, soldiers aboard two army trucks led by Lt. Col. Rolando Nerona, Head
of the Philippine Armys 64th Infantry Battalion went to the town of Ampatuan to confirm the report. At
around 3 p.m., they passed by the checkpoint along the highway in Ampatuan manned by the 1508th
Provincial Mobile Group and asked whether they were aware of the reported abduction. Members of the
1508th Provincial Mobile Group denied having knowledge of what they have witnessed at around 10 in the
morning purportedly out of fear of retaliation from the powerful Ampatuan clan. Nevertheless, P/CI Sukarno
Adil Dicay, the head of the Mobile Group, instructed P/INSP Diongon to accompany the military on foot patrol
as they conduct their operation relative to the reported abduction.
7. Upon reaching Barangay Masalay, Ampatuan, the soldiers on foot patrol found dead bodies, bloodied and
scattered on the ground and inside the four (4) vehicles used by the convoy. Three (3) newly covered graves
and a back hoe belonging to the Maguindanao Provincial Government parked nearby with its engine still
running were found at the site. When the graves were dug up by the soldiers, twenty four (24) dead bodies
were found in the first grave; six (6) dead bodies with three (3) vehicles, particularly a Toyota Vios with the
seal of the Tacurong City Government, a Tamaraw FX and an L300 owned by the media outfit UNTV were
found in the second grave; and five (5) more dead bodies were recovered from the third grave, yielding 35
buried dead bodies and, together with other cadavers, resulted in a total of fifty seven (57) fatalities.
8. x x x
9. Examination of the bodies revealed that most, if not all, of the female victims pants were found unzipped,
and their sexual organs mutilated and mangled. Five (5) of them were tested positive for traces of semen,
indicative of sexual abuse while some of the victims were shot in the genital area. The genitalia of Genelyn
Mangudadatu was lacerated four (4) times, and blown off by a gun fire, and her body horrifyingly mutilated.
Two of the women killed were pregnant, while another two were lawyers. Twenty-nine (29) of the casualties
were media personnel. Almost all gun shot injuries were on the heads of the victims, rendering them
unrecognizable albeit two (2) bodies remain unidentified. Those found in the graves were coarsely lumped
like trash, and some of the victims were found hogtied. All the dead bodies bear marks of despicable torture,
contempt and outrageous torment.3
A day after the carnage, on 24 November 2009, former President Gloria Macapagal-Arroyo (President Arroyo)
issued Proclamation No. 1946, declaring a state of emergency in the provinces of Maguindanao and Sultan Kudarat,
and in the City of Cotabato, "to prevent and suppress the occurrence of similar other incidents of lawless violence in
Central Mindanao." The full text of Proclamation No. 1946 reads:
DECLARING A STATE OF EMERGENCY IN CENTRAL MINDANAO
WHEREAS, on November 23, 2009, several persons, including women and members of media were
killed in a violent incident which took place in Central Mindanao;
WHEREAS, there is an urgent need to prevent and suppress the occurrence of similar other incidents
of lawless violence in Central Mindanao;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines,
by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:
SECTION 1. The Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato are
hereby placed under a state of emergency for the purpose of preventing and suppressing
lawless violence in the aforesaid jurisdiction.
SECTION 2. The Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP) are hereby ordered to undertake such measures as may be allowed by the Constitution
and by law to prevent and suppress all incidents of lawless violence in the said jurisdiction.
SECTION 3. The state of emergency covering the Provinces of Maguindanao and Sultan
Kudarat and the City of Cotabato shall remain in force and effect until lifted or withdrawn by the
President.4
On 4 December 2009, President Arroyo issued Proclamation No. 1959, declaring martial law and suspending the
privilege of the writ of habeas corpus (writ) in the Province of Maguindanao, except for the identified areas of the

Moro Islamic Liberation Front (MILF). The full text of Proclamation No. 1959, signed by President Arroyo and
attested by Executive Secretary Eduardo Ermita, reads:
PROCLAMATION NO. 1959
PROCLAIMING A STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO, EXCEPT FOR CERTAIN AREAS
WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of emergency
in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of
preventing and suppressing lawless violence in the aforesaid areas;
WHEREAS, Section 18, Art.VII of the Constitution provides that "x x x In case of invasion or rebellion,
when the public safety requires it, (the President) may, for a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.
x x x"
WHEREAS, R.A. No. 69865 provides that the crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of x x x depriving the Chief Executive
or the Legislature, wholly or partially, of any of their powers or prerogatives."
WHEREAS, heavily armed groups in the province of Maguindanao have established positions to resist
government troops, thereby depriving the Executive of its powers and prerogatives to enforce the laws
of the land and to maintain public order and safety;
WHEREAS, the condition of peace and order in the province of Maguindanao has deteriorated to the
extent that the local judicial system and other government mechanisms in the province are not
functioning, thus endangering public safety;
WHEREAS, the Implementing Operational Guidelines of the GRP-MILF Agreement on the General
Cessation of Hostilities dated 14 November 1997 provides that the following is considered a prohibited
hostile act: "x x x establishment of checkpoints except those necessary for the GRPs enforcement and
maintenance of peace and order; and, for the defense and security of the MILF in their identified areas,
as jointly determined by the GRP and MILF. x x x"
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines,
by virtue of the powers vested in me by the Constitution and by law, do hereby proclaim, as follows:
SECTION 1. There is hereby declared a state of martial law in the province of Maguindanao,
except for the identified areas of the Moro Islamic Liberation Front as referred to in the
Implementing Operational Guidelines of the GRP-MILF Agreement on the General Cessation of
Hostilities.
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the
aforesaid area for the duration of the state of martial law.6
On 6 December 2009, President Arroyo submitted her Report to Congress in accordance with the provision in
Section 18, Article VII of the 1987 Constitution, which states that "within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress." In her Report, President Arroyo presented the following justifications for
imposing martial law and suspending the writ in Maguindanao, to wit:
Pursuant to the provision of Section 18, Article VII of the 1987 Constitution, the President of the Republic of the
Philippines is submitting the hereunder Report relative to Proclamation No. 1959 "Proclaiming a State of Martial Law
and Suspending the Privilege of the Writ of Habeas Corpus in the Province of Maguindanao, except for Certain
Areas," which she issued on 04 December 2009, as required by public safety, after finding that lawless elements
have taken up arms and committed public uprising against the duly constituted government and against the
people of Maguindanao, for the purpose of removing from the allegiance to the Government or its laws, the
Province of Maguindanao, and likewise depriving the Chief Executive of her powers and prerogatives to
enforce the laws of the land and to maintain public order and safety, to the great damage, prejudice and
detriment of the people in Maguindanao and the nation as a whole.
xxx
The capture of identified leader Mayor Andal Ampatuan, Jr. would have resulted in the expeditious apprehension

and prosecution of all others involved in the gruesome massacre, but the situation proved the contrary. The
Ampatuan group backed by formidable group of armed followers, have since used their strength and political
position to deprive the Chief Executive of her power to enforce the law and to maintain public order and safety. More
importantly, a separatist group based in Maguindanao has joined forces with the Ampatuans for this purpose. These
are the facts:
1. Local government offices in the province of Maguindanao were closed and ranking local government
officials refused to discharge their functions, which hindered the investigation and prosecution team from
performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of the
victims purportedly upon the orders of Andal Ampatuan Sr.;
3. The local judicial system has been crippled by the absence or non-appearance of judges of local courts,
thereby depriving the government of legal remedies in their prosecutorial responsibilities (i.e. issuance of
warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding
Judge from another province, the normal judicial proceedings could not be carried out in view of threats to
their lives or safety, prompting government to seek a change of venue of the criminal cases after informations
have been filed.
Duly verified information disclosed that the Ampatuan group is behind the closing down of government offices, the
refusal of local officials to discharge their functions and the simultaneous absence or non-appearance of judges in
local courts.
Detailed accounts pertaining to the rebel armed groups and their active movements in Maguindanao have been
confirmed:
I. As of November 29, 2009, it is estimated that there are about 2,413 armed combatants coming from the
municipalities of Shariff Aguak, Datu Unsay, Datu Salibo, Mamasapano, Datu Saudi Ampatuan (Dikalungan),
Sultan Sa Barungis, Datu Piang, Guindulungan, and Talayan, who are in possession of around 2,000
firearms/armaments.
II. The Ampatuan group has consolidated a group of rebels consisting of 2,413 heavily armed men, with 1,160
of them having been strategically deployed in Maguindanao. Validated information on the deployment of
rebels are as follows:
I. Around five hundred (500) armed rebels with 2 "Sanguko" armored vehicles are in offensive position
in the vicinity of Kakal, Ampatuan, Dimampao, Mamasapano and Sampao Ampatuan.
II. A group with more or less 200 armed rebels has moved from Old Maganoy into an offensive position.
III. More or less 80 fully armed rebels remain in Tuka, Mamasapano.
IV. More or less 50 fully armed rebels led by a former MNLF Commander are in offensive position in
Barangay Baital, Rajah Buayan.
V. More or less 70 fully armed rebels with two (2) M60 LMG remain in offensive position in the vicinity
of Barangay Kagwaran, Barangay Iginampong, Datu Unsay (right side of Salvo-General Santos City
national highway).
VI. More or less 60 fully armed rebels with four (4) M60 LMG remain in offensive position in the vicinity
of Kinugitan, the upper portion of Barangay Maitumaig, Datu Unsay.
VII. Kagui Akmad Ampatuan was sighted in Sultan Sa Barongis with 400 armed rebels. Locals heard
him uttered "PATAYAN NA KUNG PATAYAN."
VIII. More or less 100 armed rebels led by one of the identified leaders in the massacre have been
sighted at the quarry of Barangay Lagpan, boundary of Rajah Buayan and Sultan Sa Barongis. The
group is armed with one (1) 90RR, one (1) cal 50 LMG, two (2) cal 30 LMG, two (2) 60 mm mortar and
assorted rifles.
The strength of the rebels is itself estimated to be around 800 with about 2,000 firearms (Fas). These forces are
concentrated in the following areas in Maguindanao which are apparently also their political stronghold:
xxx

The existence of this armed rebellion is further highlighted by the recent recovery of high powered firearms and
ammunitions from the 400 security escorts of Datu Andal Ampatuan Sr.
xxx
Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu
Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and patrol
cars with unauthorized "PNP/Police" markings, all together confirm the existence of armed public uprising
for the political purpose of:
1. removing allegiance from the national government of the Province of Maguindanao; and,
2. depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and to
maintain public order and safety.
While the government is at present conducting legitimate operations to address the on-going rebellion,
public safety still requires the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the Province of Maguindanao until the time that such rebellion is completely
quelled.7 (Emphasis supplied)
In the meantime, the present petitions were filed impugning the constitutionality of Proclamation No. 1959.
1. G.R. No. 190293 is a petition "for the issuance of a temporary restraining order and writs of prohibition and
preliminary prohibitory injunction (1) to declare Proclamation No. 1959 or any act, directive or order arising
from or connected to it as unconstitutional, and (2) to enjoin public respondents from further enforcing the
same."
2. G.R. No. 190294 is a petition for certiorari assailing the constitutionality of Proclamation No. 1959 "for
gross insufficiency of the factual basis in proclaiming a state of martial law and suspending the [writ] in the
Province of Maguindanao." It prayed for the issuance of a writ of prohibition under Section 2 of Rule 65 to
enjoin and prohibit respondents from enforcing Proclamation No. 1959.
3. G.R. No. 190301 is a petition seeking "the nullification of Proclamation No. 1959, proclaiming a state of
martial law and suspending the [writ] in the province of Maguindanao, except for certain areas, as it is
patently illegal and unconstitutional for lack of any factual basis."
4. G.R. No. 190302 is a petition for certiorari to declare Proclamation No. 1959 as null and void for being
unconstitutional, and for prohibition to enjoin respondents from further actions or proceedings in enforcing or
implementing Proclamation No. 1959.
5. G.R. No. 190307 is a petition for certiorari, prohibition, and mandamus with a prayer for a preliminary
prohibitory injunction and/or a temporary restraining order, and/or a petition for review pursuant to Article VII,
Section 18, paragraph 3 of the 1987 Constitution, asking the Court to declare that then Executive Secretary
Eduardo Ermita committed grave abuse of discretion amounting to lack or excess of jurisdiction when he
signed, in the name of President Arroyo, Proclamation No. 1959. The petition also prayed for the issuance of
a Temporary Restraining Order and/or preliminary prohibitory injunction, prohibiting respondents, and anyone
acting under their authority, stead, or behalf, from implementing Proclamation No. 1959 during the pendency
of the case.
6. G.R. No. 190356 is a petition for prohibition, with an application for the issuance of a temporary restraining
order and/or a writ of preliminary injunction, assailing the constitutionality and the sufficiency of the factual
basis of Proclamation No. 1959, declaring a state of martial law in the province of Maguindanao (except for
identified areas of the MILF) and suspending the writ in the same area.
7. G.R. No. 190380 is a petition for certiorari assailing the validity of Proclamation No. 1959, declaring a state
of martial law in the province of Maguindanao, except for the identified areas of the MILF, and suspending the
writ in the same area.
On 9 December 2009, Congress convened in joint session pursuant to Section 18, Article VII of the 1987
Constitution, which provides, "The Congress, if not in session, shall, within twenty-four hours following such
proclamation [of martial law] or suspension [of the writ], convene in accordance with its rules without need of a call."
Meanwhile, eight days after the declaration of martial law, on 12 December 2009, President Arroyo issued
Proclamation No. 1963 lifting martial law and restoring the writ in Maguindanao. The full text of Proclamation No.

1963, signed by President Arroyo and attested by Executive Secretary Eduardo Ermita, reads:
PROCLAMATION NO. 1963
PROCLAIMING THE TERMINATION OF THE STATE OF MARTIAL LAW AND THE RESTORATION
OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE PROVINCE OF MAGUINDANAO
WHEREAS, Proclamation No. 1946 was issued on 24 November 2009 declaring a state of emergency
in the provinces of Maguindanao, Sultan Kudarat and the City of Cotabato for the purpose of
preventing and suppressing lawless violence in the aforesaid areas;
WHEREAS, by virtue of the powers granted under Section 18, Article VII of the Constitution, the
President of the Philippines promulgated Proclamation No. 1959 on December 4, 2009, proclaiming a
state of martial law and suspending the privilege of the writ of Habeas Corpus in the province of
Maguindanao, except for certain areas;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that
over six hundred (600) persons who allegedly rose publicly and took up arms against the Government
have surrendered or have been arrested or detained;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have reported that
the areas where heavily armed groups in the province of Maguindanao established positions to resist
government troops have been cleared;
WHEREAS, the court and prosecutors offices of Cotabato City have resumed normal working hours,
paving the way for the criminal justice system in Maguindanao to be restored to normalcy;
WHEREAS, the Vice-Governor of the Autonomous Region of Muslim Mindanao has assumed as Acting
Governor, paving the way for the restoration of the functioning of government mechanisms in the
province of Maguindanao;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines,
by virtue of the powers vested in me by the Constitution and by law, do hereby revoke Proclamation
No. 1959 and proclaim the termination of the state of martial law and the restoration of the privilege of
the writ of habeas corpus in the province of Maguindanao; provided that Proclamation No. 1946 shall
continue to be in force and effect.8
In the Resolutions dated 8 and 15 December 2009,9 the Court consolidated the petitions and required the Office of
the Solicitor General and the respondents to comment on the petitions.
In a Resolution dated 12 January 2010, the Court resolved "to appoint as amici curiae Justice Vicente Mendoza,
Senator Joker Arroyo, and Father Joaquin Bernas, [S.J.] and request them to submit their respective Amicus Brief
on the questions to be addressed by the parties."10
Meanwhile, on 9 December 2009, an Information for rebellion was filed before the Regional Trial Court, Branch 15,
Cotabato City (RTC-Cotabato), against Ampatuan, et al.11 The information reads:
That on or about 27th day of November, 2009, and continuously thereafter, until the present time, in Maguindanao
Province and within the jurisdiction of this Honorable Court, accused Datu Andal Ampatuan, Sr., Datu Zaldy Uy
Ampatuan, Datu Akmad Tato Ampatuan, Datu Anwar Ampatuan and Datu Sajid Islam Uy Ampatuan as heads of the
rebellion, conspiring, confederating and cooperating with each other, as well as with the other accused as
participants or executing the commands of others in the rebellion and also with other John Does whose
whereabouts and identities are still unknown, the said accused, who are heads of the rebellion, did then and there
willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command their co-accused
who are their followers to rise publicly and take arms against the Republic of the Philippines, or otherwise participate
in such armed public uprising, for the purpose of removing allegiance to the government or its laws, the territory of
the Republic of the Philippines or any part thereof or depriving the Chief Executive of any of her powers or
prerogatives as in fact they have been massing up armed men and organizing assemblies, as a necessary means to
commit the crime of rebellion, and in furtherance thereof, have then and there committed acts preventing public
prosecutors from being available to conduct inquest and preliminary investigations. There were massive formations
of numerous armed civilians supported by armored vehicles and under the command of the Ampatuans who have
formed a private army to resist government troops; that the local provincial government of Maguindanao could not
function with their employees going on mass leave and their respective offices were closed and not functioning. The
Regional Trial Courts of the area are not functioning, refused to accept the application for search warrants for

violation of PD 1866 to authorize the search of the properties of the heads of the rebellion; and that there was undue
delay in the issuance of court processes despite the exigency of the situation.
CONTRARY TO LAW.12
On the next day, 10 December 2009, accused Ampatuan, et al. filed an Urgent Omnibus Motion, which included a
motion for judicial determination of probable cause for the offense charged. On the same day, the Acting Presiding
Judge of RTC-Cotabato issued an Order, stating that "the Court needs time to go over the resolution finding
probable cause against the accused Datu Andal Ampatuan, Sr., [et al.]."
On 1 February 2010, the Regional Trial Court of Quezon City received the records of the case, pursuant to the
Supreme Courts En Banc Resolution, dated 12 January 2010, which ordered the transfer of venue of the rebellion
case to Quezon City. The case, docketed as Criminal Case No. Q-10-162667 and entitled People of the Philippines
v. Datu Andal Ampatuan, Sr., et al., was raffled to Branch 77 of the Regional Trial Court of Quezon City (RTCQuezon City) on 2 February 2010.
On 3 February 2010, the accused filed an Urgent Motion praying for the issuance of an order suspending the
transfer of custody of all the accused pending the resolution of their motion for judicial determination of probable
cause.
On 26 March 2010, the RTC-Quezon City dismissed the charge of rebellion for lack of probable cause, to wit:
After a careful and judicious scrutiny of the evidence forming part of the records and those adduced by the
prosecution during the hearing on the motion for judicial determination of probable cause, the Court is convinced
that there exist[s] no probable cause to hold under detention and to indict the accused for rebellion.
xxxx
Rebellion under Article 134 of the Revised Penal Code is committed
[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Republic of the Philippines or any part thereof, or any body of land, naval,
or other armed forces or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
The elements of the offense are:
1. That there be a (a) public uprising and (b) taking arms against the Government; and
2. That the purpose of the uprising or movement is either
(a) to remove from the allegiance to said Government or its laws:
(1) the territory of the Philippines or any part thereof; or
(2) any body of land, naval, or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.
xxxx
The essential element of public armed uprising against the government is lacking. There were no masses or
multitudes involving crowd action done in furtherance of a political end. So, even assuming that there was uprising,
there is no showing that the purpose of the uprising is political, that is, to overthrow the duly constituted government
in order to establish another form of government. In other words, the second element is also absent.
xxxx
x x x It is quite interesting that the prosecution failed to present any particular instance where the accused had
directly or indirectly prevented government prosecutors from performing their job relative to the prosecution of the
suspects in the infamous Maguindanao massacre.
On the contrary, documentary evidence on record shows that the alleged principal suspect in the mass killings, Datu
Andal Ampatuan, Jr., was made to undergo inquest proceedings at General Santos City, immediately after he was
taken into custody by law enforcement authorities. This alone belies the prosecutions theory that the prosecutors

were not available to conduct inquest and preliminary investigations relative to the mass killings in the Municipality
of Ampatuan, Province of Maguindanao.
xxxx
x x x [T]he intelligence reports presented by the military and police are unfounded. The reports do not suggest that
the alleged armed groups loyal to the accused are initiating violent and hostile actions, whether directly or indirectly,
against government security forces. Even the discovery and confiscation of large cache of firearm and ammunitions,
allegedly belonging to the Ampatuans, cannot be considered as an act of rebellion. In fact, the firearms and
ammunitions were subsequently unearthed, recovered and confiscated from different places. The government
security forces should have been able to engage and neutralize the reported armed groups on the basis of its
intelligence reports confirming their size, strength and whereabouts.
xxxx
The statements of prosecution witnesses Mangacop and Dingcong are general allegations. Their statements do not
show that the accused were responsible for the mass leave of officials and employees of the local government units.
There is no evidence to show that the accused actually prevented the local officials and employees from reporting to
their offices.
The evidence will show that the Department of Interior and Local Government and the Philippine National Police
closed down these offices, without any justifiable reasons. In fact, there were news footages which showed that
many employees were caught by surprise on the unexpected closure of their offices.
xxxx
It is alleged in the Information that the courts were no longer functioning in Cotabato City and in Maguindanao
province, which have jurisdiction over the place of the commission of the massacre. The factual circumstances,
however, belie said allegation. This Court takes judicial notice of the fact that no less than the Supreme Court of the
Republic of the Philippines had denied the allegation that civilian courts were or are no longer functioning in
Maguindanao.
xxxx
WHEREFORE, premises considered, the Court finds that there exists no probable cause to indict and hold under
detention the accused for rebellion. Accordingly, the instant case is hereby dismissed and the accused-movants are
hereby ordered released from further detention, unless they are held by a court of law for other lawful cause/s.
Let this Order be served personally upon the accused-movants, through the responsible officers of the law having
custody over them, who are hereby directed to release the accused from detention immediately upon receipt hereof.
SO ORDERED.13
In an Order dated 28 May 2010, the RTC-Quezon City denied the prosecutions motion for reconsideration of the
Order dated 26 March 2010.
The DOJ filed a petition for certiorari14 before the Court of Appeals assailing the dismissal of the rebellion charges
against accused Ampatuan, et al.
In a Decision promulgated on 15 December 2011,15 the Court of Appeals denied the petition for certiorari. Quoting
the findings of the RTC-Quezon City, the Court of Appeals held that there is no probable cause as there is no
showing that all the elements of the crime of rebellion are present. The Court of Appeals stated that "a review of its
own narration of events only lends to the belief that the rebellion existed only in the minds of the complainants." The
Court of Appeals ruled that there was no armed public uprising, finding "no proof that armed groups were massing
up and were planning to instigate civil disobedience and to challenge the government authorities for political ends."
The Issues
The crux of the present controversy is the constitutionality of Proclamation No. 1959, declaring martial law and
suspending the writ in Maguindanao. The threshold issue before this Court is whether there is sufficient factual basis
for the issuance of Proclamation No. 1959 based on the stringent requirements set forth in Section 18, Article VII of
the 1987 Constitution.
In its 15 December 2009 Resolution, the Court additionally posed the following questions for resolution:

1. Whether the issuance of Proclamation No. 1963, lifting martial law and restoring the writ in Maguindanao,
rendered the issues raised in the present petitions moot and academic;
2. Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same meaning as
the term "rebellion" that is defined in Article 134 of the Revised Penal Code;
3. Whether the declaration of martial law or the suspension of the writ authorizes warrantless arrests,
searches and seizures;
4. Whether the declaration of martial law or the suspension of the writ is a joint and sequential function of the
President and Congress such that, without Congressional action on the proclamation either affirming or
revoking it, the President having in the meantime lifted the declaration and restored the writ, this Court has
nothing to review;
5. If the constitutional power of this Court to review the factual basis of the declaration of martial law or
suspension of the writ can be exercised simultaneously with the constitutional power of Congress to revoke
the declaration or suspension, and the decision of this Court conflicts with the decision of Congress, which
decision shall prevail; and
6. Whether this Courts determination of the sufficiency of the factual basis of the declaration of martial law or
suspension of the writ, which in the meantime has been lifted and restored, respectively, would be essential to
the resolution of issues concerning the validity of related acts that the government committed during the time
martial law was in force.
In its Comment Re: Resolution dated 15 December 2009, the OSG raised the issue of whether petitioners possess
legal standing to challenge the constitutionality of Proclamation No. 1959.
Discussion
I dissent from the majority's dismissal of the petitions as moot. I find Proclamation No. 1959 unconstitutional for lack
of factual basis as required in Section 18, Article VII of the 1987 Constitution for the declaration of martial law and
suspension of the writ. The majority in effect refuses to exercise this Courts constitutional power in Section 18 of
Article VII, to "review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ or the extension thereof."
Before proceeding to the substantive issues, I shall first discuss the issue on locus standi.
In its Comment Re: Resolution dated 15 December 2009, the OSG questioned the legal standing of petitioners in
challenging the constitutionality of Proclamation No. 1959. The OSG argued that the phrase "any citizen" in Section
18, Article VII of the 1987 Constitution must be read in conjunction with the phrase "appropriate proceeding." Since
petitioners deemed the original actions for certiorari and prohibition as the appropriate proceeding referred to in
Section 18, Article VII of the Constitution, petitioners must satisfy the requirements under Rule 65 of the Rules of
Court, one of which is the institution of the action by the aggrieved party. The OSG pointed out that none of the
petitioners qualify as an aggrieved party.
This is error.
"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.16 In
case of a suit questioning the sufficiency of the factual basis of the proclamation of martial law or suspension of the
writ, such as here, Section 18, Article VII of the Constitution expressly provides:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing. (Emphasis supplied)
It is clear that the Constitution explicitly clothes "any citizen" with the legal standing to challenge the constitutionality
of the declaration of martial law or suspension of the writ. The Constitution does not make any distinction as to who
can bring such an action. As discussed in the deliberations of the Constitutional Commission, the "citizen" who can
challenge the declaration of martial law or suspension of the writ need not even be a taxpayer.17 This was
deliberately designed to arrest, without further delay, the grave effects of an illegal declaration of martial law or
suspension of the writ, and to provide immediate relief to those aggrieved by the same. Accordingly, petitioners,
being Filipino citizens, possess legal standing to file the present petitions assailing the sufficiency of the factual
basis of Proclamation No. 1959.

Moreover, given the transcendental importance of the issues raised in the present petitions, the Court may relax the
standing requirement and allow a suit to prosper even where there is no direct injury to the party claiming the right of
judicial review.18 The Court has held:
Notwithstanding, in view of the paramount importance and the constitutional significance of the issues raised in the
petitions, this Court, in the exercise of its sound discretion, brushes aside the procedural barrier and takes
cognizance of the petitions, as we have done in the early Emergency Powers Cases, where we had occasion to
rule:
x x x ordinary citizens and taxpayers were allowed to question the constitutionality of several executive
orders issued by President Quirino although they [involved] only an indirect and general interest shared
in common with the public. The Court dismissed the objection that they were not proper parties and
ruled that transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. We have since
then applied the exception in many other cases.19 (Emphasis supplied)
I.
Whether the issuance of Proclamation No. 1963,
lifting martial law and restoring the writ in the province of Maguindanao,
rendered the issues raised in the petitions moot and academic.
The majority dismisses the petitions on mootness, agreeing with respondents' contention that the issuance of
Proclamation No. 1963, lifting martial law and restoring the writ in the province of Maguindanao, rendered the issues
raised in the present petitions moot and academic. Respondents maintain that the petitions have ceased to present
an "actual case or controversy" with the lifting of martial law and the restoration of the writ, the sufficiency of the
factual basis of which is the subject of these petitions. Proclamation No. 1963 is allegedly a "supervening event" that
rendered of no practical use or value the consolidated petitions.
As a rule, courts may exercise their review power only when there is an actual case or controversy, which involves a
conflict of legal claims susceptible of judicial resolution. Such a case must be "definite and concrete, touching the
legal relations of parties having conflicting legal interests;" a real, as opposed to an imagined, controversy calling for
a specific relief.20
Corollarily, courts generally decline jurisdiction over a moot and academic case or outrightly dismiss it on the ground
of mootness. A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that assuming jurisdiction over the same, and eventually deciding it, would be of no practical
use or value.21
In David v. Arroyo,22 this Court held that the "moot and academic" principle is not a magical formula that
automatically dissuades courts in resolving a case. Courts are not prevented from deciding cases, otherwise moot
and academic, if (1) there is a grave violation of the Constitution;23 (2) the situation is of exceptional character and
of paramount public interest;24 (3) the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;25 and (4) the case is capable of repetition yet evading review.26
In Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on Ancestral Domain
(GRP),27 the Court ruled that once a suit is filed, the Court cannot automatically be deprived of its jurisdiction over a
case by the mere expedient of the doer voluntarily ceasing to perform the challenged conduct. Otherwise, the doer
would be dictating when this Court should relinquish its jurisdiction over a case. Further, a case is not mooted when
the plaintiff seeks damages or prays for injunctive relief against the possible recurrence of the violation.28
Contrary to the majority opinion, the present petitions fall squarely under these exceptions, justifying this Courts
exercise of its review power.
First, whether Proclamation No. 1959 complied with the requirements under Section 18, Article VII of the
Constitution is without doubt an extremely serious constitutional question. In order to forestall any form of
abuse in the exercise of the Presidents extraordinary emergency powers, as what happened during the
Martial Law regime under former President Ferdinand Marcos (President Marcos), the 1987 Constitution has
carefully put in place specific safeguards, which the President must strictly observe. Any declaration of martial
law or suspension of the writ falling short of the constitutional requirements must be stricken down as a matter
of constitutional duty by this Court.
Second, whether the President exercised her Commander-in-Chief powers in accordance with the

Constitution indisputably presents a transcendental issue fully imbued with public interest. I agree with amicus
curiae Father Joaquin Bernas opinion: "The practice of martial rule can have a profoundly disturbing effect on
the life, liberty and fortunes of people. Likewise, the actions taken by the police and military during the period
when martial law is in effect can have serious consequences on fundamental rights."29
Third, the issue on the constitutionality of Proclamation No. 1959 unquestionably requires formulation of
controlling principles to guide the Executive, Legislature, and the public.
The Presidents issuance of Proclamation No. 1959 generated strong reactions from various sectors of society. This,
of course, is an expected response from a nation whose painful memory of the dark past remains fresh. The nation
remembers that martial law was the vehicle of President Marcos to seize unlimited State power, which resulted in
gross and wanton violations of fundamental human rights of the people. That era saw the collapse of the rule of law
and what reigned supreme was a one man-rule for the dictators own personal benefit.
The present controversy, being the first case under the 1987 Constitution involving the Presidents exercise of the
power to declare martial law and suspend the writ, provides this Court with a rare opportunity,30 which it must
forthwith seize, to formulate controlling principles for the guidance of all sectors concerned, most specially the
Executive which is in charge of enforcing the emergency measures. Dismissing the petitions on the ground of
mootness will most certainly deprive the entire nation of instructive and valuable principles on this extremely crucial
national issue.
Fourth, the present case is capable of repetition yet evading review. I agree with Father Bernas view: "[H]istory
clearly attests that the events that can lead to martial law, as well as the imposition of martial law itself, and the
suspension of the privilege together with actions taken by military and police during a period of martial law are
capable of repetition and are too important to allow to escape review through the simple expedient of the President
lifting a challenged proclamation."31
Fifth, the respondents or doers voluntary cessation of the questioned act does not by itself deprive the Court of its
jurisdiction once the suit is filed. In this case, President Arroyo, after eight days from the issuance of Proclamation
No. 1959, issued Proclamation No. 1963 revoking Proclamation No. 1959. President Arroyos lifting of martial law
and restoration of the writ translate to a voluntary cessation of the very acts complained of in the present petitions.
However, the present petitions were filed with this Court while Proclamation No. 1959 was still in effect and before
Proclamation No. 1963 was issued, thus foreclosing any legal strategy to divest this Court of its jurisdiction by the
mere cessation or withdrawal of the challenged act.
Moreover, the fact that every declaration of martial law or suspension of the writ will involve its own set of
circumstances peculiar to the necessity of time, events or participants should not preclude this Court from reviewing
the Presidents use of such emergency powers. Whatever are the circumstances surrounding each declaration of
martial law or suspension of the writ, the declaration or suspension will always be governed by the same safeguards
and limitations prescribed in the same provisions of the Constitution. Failing to determine the constitutionality of
Proclamation No. 1959 by dismissing the cases on the ground of mootness sets a very dangerous precedent to the
leaders of this country that they could easily impose martial law or suspend the writ without any factual or legal basis
at all, and before this Court could review such declaration, they would simply lift the same and escape possible
judicial rebuke.
II.
Whether the term "rebellion" in Section 18, Article VII of the 1987 Constitution has the same meaning as the term
"rebellion" that is
defined in Article 134 of the Revised Penal Code.
Article 134 of the Revised Penal Code, as amended by Republic Act No. 6968,32 defines the crime of rebellion,
thus:
Art. 134. Rebellion or insurrection; How committed. The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other
armed forces, depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives.
The Constitution, however, does not provide any definition of the term "rebellion." Portions of the first paragraph of
Section 18, Article VII of the Constitution, where the term "rebellion" appears, read:
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it

becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law.
Respondents submit that the term "rebellion" must, "for constitutional law purposes, be applied in such manner as to
be amply responsive to the call of the times." Respondents point out that the deliberations of the 1986 Constitutional
Commission reveal that the concept of the term "rebellion" depends much on its magnitude and scope, as
determined by the President based on prevailing circumstances.33
I disagree. The term "rebellion" in Section 18, Article VII of the 1987 Constitution must be understood as having the
same meaning as the crime of "rebellion" that is defined in Article 134 of the Revised Penal Code, as amended.
First, this is the clear import of the last two paragraphs of Section 18, Article VII of the Constitution, which explicitly
state:
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for
rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall
be judicially charged within three days, otherwise he shall be released. (Emphasis supplied)
For a person to be judicially charged for rebellion, there must necessarily be a statute defining rebellion. There is no
statute defining rebellion other than the Revised Penal Code. Hence, "one can be judicially charged with rebellion
only if one is suspected of having committed acts defined as rebellion in Article 134 of the Revised Penal Code."34
Second, the Revised Penal Code definition of rebellion is the only legal definition of rebellion known and understood
by the Filipino people when they ratified the 1987 Constitution. Indisputably, the Filipino people recognize and are
familiar with only one meaning of rebellion, that is, the definition provided in Article 134 of the Revised Penal Code.
To depart from such meaning is to betray the Filipino peoples understanding of the term "rebellion" when they
ratified the Constitution. There can be no question that "the Constitution does not derive its force from the
convention which framed it, but from the people who ratified it."35
Third, one of the Whereas clauses of Proclamation No. 1959 expressly cites the Revised Penal Code definition of
rebellion, belying the governments claim that the Revised Penal Code definition of rebellion merely guided the
President in issuing Proclamation No. 1959.
In SANLAKAS v. Executive Secretary,36 where the Court regarded President Arroyos declaration of a state of
rebellion in Proclamation No. 427 a superfluity,37 the term "rebellion" in said proclamation referred to the crime of
rebellion as defined in Article 134 of the Revised Penal Code. Proclamation No. 427 pertinently reads:
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines, armed with high-powered
firearms and explosives, acting upon the instigation and command and direction of known and
unknown leaders, have seized a building in Makati City, put bombs in the area, publicly declared
withdrawal of support for, and took arms against the duly constituted Government, and continue to rise
publicly and show open hostility, for the purpose of removing allegiance to the Government certain
bodies of the Armed Forces of the Philippines and the Philippine National Police, and depriving
the President of the Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under Article 134 of the Revised
Penal Code, as amended; x x x (Emphasis supplied)
In issuing Proclamation No. 427, President Arroyo relied on the Revised Penal Code definition of rebellion in
declaring a state of rebellion. In other words, President Arroyo understood that, for purposes of declaring a state of
rebellion, the term "rebellion" found in the Constitution refers to the crime of rebellion defined in Article 134 of the
Revised Penal Code.
In exercising the Commander-in-Chief powers under the Constitution, every President must insure the existence of
the elements of the crime of rebellion, which are: (1) there is a (a) public uprising and (b) taking arms against the
Government; and (2) the purpose of the uprising or movement is either (a) to remove from the allegiance to the
Government or its laws: (1) the territory of the Philippines or any part thereof; or (2) any body of land, naval, or other
armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and
prerogatives.38

To repeat, the term "rebellion" in Section 18, Article VII of the Constitution must be understood to have the same
meaning as the crime of rebellion defined in Article 134 of the Revised Penal Code. Ascribing another meaning to
the term "rebellion" for constitutional law purposes, more specifically in imposing martial law and suspending the
writ, different from the definition in Article 134 of the Revised Penal Code, overstretches its definition without any
standards, invites unnecessary confusion, and undeniably defeats the intention of the Constitution to restrain the
extraordinary Commander-in-Chief powers of the President.
Since the term "rebellion" in Section 18, Article VII of the Constitution pertains to the crime of rebellion as defined in
Article 134 of the Revised Penal Code, the next question turns on the kind of proof required for a valid declaration of
martial law and suspension of the writ.
While the Constitution expressly provides strict safeguards against any potential abuse of the Presidents
emergency powers, the Constitution does not compel the President to produce such amount of proof as to unduly
burden and effectively incapacitate her from exercising such powers.
Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof required for
convicting an accused charged with a criminal offense. Section 2, Rule 133 of the Rules of Court defines proof
beyond reasonable doubt as follows:
Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an
unprejudiced mind.
Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish the
existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the writ
amounts to an excessive restriction on "the Presidents power to act as to practically tie her hands and disable her
from effectively protecting the nation against threats to public safety."39
Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a
lawful declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the
President in exercising her emergency powers, as it requires proof greater than preponderance of evidence
although not beyond reasonable doubt.40
Not even preponderance of evidence,41 which is the degree of proof necessary in civil cases, is demanded for a
lawful declaration of martial law.
By preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to that of the
other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to
be synonymous with the term "greater weight of evidence" or "greater weight of the credible evidence". It is
evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.42
Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and impose
martial law or suspend the writ unreasonably curtails the Presidents emergency powers.
Similarly, substantial evidence constitutes an unnecessary restriction on the Presidents use of her emergency
powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that
amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.43
I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the
standard of proof for a valid declaration of martial law and suspension of the writ.
Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and for
the issuance of an arrest warrant by a judge. Probable cause has been defined as a "set of facts and circumstances
as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any
offense included therein has been committed by the person sought to be arrested."44
In determining probable cause, the average man weighs the facts and circumstances without resorting to
the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense.
A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been
committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less
than evidence that would justify conviction.45 (Emphasis supplied)
Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient
standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a

declaration of martial law or suspension of the writ. Therefore, lacking probable cause of the existence of rebellion, a
declaration of martial law or suspension of the writ is without any basis and thus, unconstitutional.
The requirement of probable cause for the declaration of martial law or suspension of the writ is consistent with
Section 18, Article VII of the Constitution. It is only upon the existence of probable cause that a person can be
"judicially charged" under the last two paragraphs of Section 18, Article VII, to wit:
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially
charged for rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released. (Emphasis
supplied)
III.
Whether the declaration of martial law or the suspension
of the writ authorizes warrantless arrests, searches and seizures.
Section 18, Article VII of the Constitution partially states:
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for
rebellion or offenses inherent in, or directly connected with, invasion.
The 1935 and 1973 Constitutions did not contain a similar provision. Obviously, this new provision in the 1987
Constitution was envisioned by the framers of the Constitution to serve as an essential safeguard against potential
abuses in the exercise of the Presidents emergency powers.
The Constitution now expressly declares, "A state of martial law does not suspend the operation of the Constitution."
Neither does a state of martial law supplant the functioning of the civil courts or legislative assemblies. Nor does it
authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to
function, or automatically suspend the writ. There is therefore no dispute that the constitutional guarantees under
the Bill of Rights remain fully operative and continue to accord the people its mantle of protection during a state of
martial law. In case the writ is also suspended, the suspension applies only to those judicially charged for rebellion
or offenses directly connected with invasion.
Considering the non-suspension of the operation of the Constitution during a state of martial law, a declaration of
martial law does not authorize warrantless arrests, searches and seizures, in derogation of Section 2, Article III of
the Constitution, which provides:
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
Warrantless arrests, search and seizure are valid only in instances where such acts are justified, i.e., those
enumerated in Section 5, Rule 113 of the Rules of Court.46
In Pequet v. Tangonan,47 decided during the Martial Law regime under former President Marcos, the Court stressed
that military personnel, in effecting arrests, must strictly observe the applicable Rules of Court and settled
jurisprudence, thus:
Martial law has precisely been provided in both the 1935 Charter and the present Constitution to assure that the
State is not powerless to cope with invasion, insurrection or rebellion or any imminent danger of its occurrence.
When resort to it is therefore justified, it is precisely in accordance with and not in defiance of the fundamental law.
There is all the more reason then for the rule of law to be followed. For as was so eloquently proclaimed in Ex parte
Milligan: "The Constitution is a "law for rulers and for people equally in war and in peace and covers with the shield
of its protection all classes of men at all times and under all circumstances." It is true, of course, as admitted by
Willoughby, who would limit the scope of martial law power, that the military personnel are called upon to assist in
the maintenance of peace and order and the enforcement of legal norms. They can therefore act like ordinary peace

officers. In effecting arrests, however, they are not free to ignore, but are precisely bound by, the applicable
Rules of Court and doctrinal pronouncements. (Emphasis supplied)
In Aberca v. Ver,48 the Court emphasized that the suspension of the writ does not give imprimatur to warrantless
arrests in violation of the Constitution. In that case, which involved the issue of whether the suspension of the writ
bars a civil action for damages for illegal searches and for other human rights violations committed by the military,
the Court held:
At the heart of petitioners complaint is Article 32 of the Civil Code which provides:
xxxx
It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and
freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with
impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield
borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is
necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the
transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. x x
x
xxxx
It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their
duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance
with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in
pursuance of such objective, to launch pre-emptive strikes against alleged communist terrorist underground houses.
But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional
restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and
protected by the Constitution. The Constitution remains the supreme law of the land to which all officials,
high or low, civilian or military, owe obedience and allegiance at all times.
xxxx
This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their
mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or
of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very
existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and
legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. x x x
We do not agree. We find merit in petitioners contention that the suspension of the privilege of the writ of
habeas corpus does not destroy petitioners right and cause of action for damages for illegal arrest and
detention and other violations of their constitutional rights. The suspension does not render valid an
otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release
from detention through the writ of habeas corpus as a speedy means of obtaining his liberty.49 (Emphasis
supplied)
IV.
Whether the declaration of martial law or suspension of
the writ is a joint and sequential function of the
President and Congress such that, without Congressional action
on the proclamation or suspension either affirming or revoking it,
the President having in the meantime lifted the same,
this Court has nothing to review.
Section 18, Article VII of the 1987 Constitution provides:
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation

or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon within thirty days from its filing.
The Constitution vests exclusively in the President, as Commander-in-Chief, the emergency powers to declare
martial law or suspend the writ in cases of rebellion or invasion, when the public safety requires it. The imposition of
martial law or suspension of the writ takes effect the moment it is declared by the President. No other act is needed
for the perfection of the declaration of martial law or the suspension of the writ. As amicus curiae retired Justice
Mendoza states:
A declaration of martial law by the President alone is complete by itself and does not require for its validity the
approval or concurrence of Congress. It is a power placed solely in the keeping of the President to enable him to
secure the people from harm and restore the public order so that they can enjoy their freedoms. Because it is liable
to abuse, it is made subject to check by Congress and/or the [Supreme Court].
The power of Congress is to revoke not to confirm or ratify, much less to approve, the Presidents action
declaring martial law or suspending the privilege of the writ of habeas corpus. It is a veto power, just as the power of
the judiciary to review the Presidents action is a veto power on the Executives action.
It is clear, therefore, that the Presidents power to declare martial law or suspend the writ is independent, separate,
and distinct from any constitutionally mandated act to be performed by either the Legislature or the Judiciary. It is
neither joint nor sequential with Congress power to revoke the declaration or suspension or to extend it upon the
initiative of the President. Accordingly, even if Congress has not acted upon the Presidents declaration or
suspension, the Court may review the declaration or suspension in an appropriate proceeding filed by any citizen.
Otherwise stated, Congress inaction on the declaration or suspension is not determinative of the Courts exercise of
its review power under Section 18, Article VII of the Constitution.
To hold that the power of this Court to review the Presidents declaration of martial law or suspension of the writ is
sequential, or joint, with the review power of Congress is to make it impossible for this Court to decide a case
challenging the declaration or suspension "within thirty days from its filing," as mandated by the Constitution.
Congress has no deadline when to revoke the Presidents declaration or suspension. Congress may not even do
anything with the Presidents declaration or suspension and merely allow it to lapse after 60 days. On the other
hand, the Constitution mandates that this Court "must promulgate its decision thereon within thirty days from
[the] filing" of the case. Clearly, the Courts review power is neither sequential nor joint with the review power of
Congress.
Moreover, the Presidents lifting of the declaration or suspension before this Court could decide the case within the
30-day period does not operate to divest this Court of its jurisdiction over the case. A party cannot simply oust the
Courts jurisdiction, already acquired, by a partys own unilateral act. The Presidents lifting of the declaration or
suspension merely means that this Court does not have to decide the case within the 30-day period, as the urgency
of deciding has ceased. Certainly, the Court is not divested of its jurisdiction simply because the urgency of deciding
a case has ceased.
V.
If the constitutional power of this Court to review the factual basis
of the declaration of martial law or suspension of the writ can be exercised simultaneously with the constitutional
power of Congress to revoke the declaration or suspension, and the decision of this Court conflicts with the decision
of Congress, which decision shall prevail.
The President has the sole and exclusive power to declare martial law or suspend the writ. This power of the
President is subject to review separately by Congress and the Supreme Court. Justice Mendoza stresses, "Thus,
Congress and this Court have separate spheres of competence. They do not act jointly and sequentially but
independently of each other."50 Father Bernas points out, "Since the powers of Congress and the Court are
independent of each other, there is nothing to prevent Congress and the Court from simultaneously exercising their
separate powers."51

In the exercise by the Court and Congress of their separate "review powers" under Section 18, Article VII of the
Constitution, three possible scenarios may arise.
First, the Presidents martial law declaration or suspension of the writ is questioned in the Supreme Court
without Congress acting on the same. Such a situation generates no conflict between the Supreme Court and
Congress. There is no question that the Supreme Court can annul such declaration or suspension if it lacks
factual basis. Congress, whose only power under Section 18, Article VII of the Constitution is to revoke the
declaration or suspension on any ground, is left with nothing to revoke if the Court has already annulled the
declaration or suspension.
Second, Congress decides first to revoke the martial law declaration or suspension of the writ. Since the
Constitution does not limit the grounds for congressional revocation, Congress can revoke the declaration or
suspension for policy reasons, or plainly for being insignificant, as for instance it involves only one barangay
rebelling, or if it finds no actual rebellion. In this case, the Supreme Court is left with nothing to act on as the
revocation by Congress takes effect immediately. The Supreme Court must respect the revocation by
Congress even if the Court believes a rebellion exists because Congress has the unlimited power to revoke
the declaration or suspension.
Third, the Supreme Court decides first and rules that there is factual basis for the declaration of martial law or
suspension of the writ. In such a situation, Congress can still revoke the declaration or suspension as its
power under the Constitution is broader insofar as the declaration or suspension is concerned. "Congress
cannot be prevented by the Court from revoking the Presidents decision because it is not for the Court to
determine what to do with an existing factual situation. x x x Congress has been given unlimited power to
revoke the Presidents decision."52 In short, even if there is an actual rebellion, whether affirmed or not by the
Supreme Court, Congress has the power to revoke the Presidents declaration or suspension.
In the present controversy, Congress failed to act on Proclamation No. 1959 when it commenced its Joint Session
on 9 December 2009 until the lifting of the martial law declaration and restoration of the writ on 12 December 2009.
Congress non-revocation of Proclamation No. 1959 categorizes the present case under the first scenario. In such a
situation, where no conflict ensues, Congress inaction on Proclamation No. 1959 does not preclude this Court from
ruling on the sufficiency of the factual basis of the declaration of martial law and suspension of the writ.
VI.
Whether this Courts determination of the sufficiency of the factual basis
of the declaration of martial law and suspension of the writ,
which in the meantime have been lifted, would be essential
to the resolution of issues concerning the validity of related acts
that the government committed during the time
that martial law and the suspension of the writ were in force.
Indisputably, unlawful acts may be committed during martial law or suspension of the writ, not only by the rebels, but
also by government forces who are duty bound to enforce the declaration or suspension and immediately put an end
to the root cause of the emergency. Various acts carried out by government forces during martial law or suspension
of the writ in the guise of protecting public safety may in reality amount to serious abuses of power and authority.
Whatever the Courts decision will be on the sufficiency of the factual basis of the Presidents declaration or
suspension does not preclude those aggrieved by such illegal acts from pursuing any course of legal action
available to them. Therefore, the determination by this Court of the sufficiency of the factual basis of the declaration
or suspension is not essential to the resolution of issues concerning the validity of related acts that government
forces may have committed during the emergency.
VII.
Whether Proclamation No. 1959 has sufficient factual basis.
The full text of Section 18, Article VII of the 1987 Constitution reads:
Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial
law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation

or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene
in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus 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 of habeas corpus.
The suspension of the privilege of the writ of habeas corpus shall apply only to persons judicially charged for
rebellion or offenses inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ of habeas corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.
The Commander-in-Chief provisions of the 1935 and 1973 Constitutions, on the other hand, respectively state:
Section 10(2), Article VII of the 1935 Constitution
2. The President shall be commander-in-chief of all armed forces of the Philippines, and, whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires
it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under
Martial Law.
Section 12, Article IX of the 1973 Constitution
SEC. 12. The Prime Minister shall be commander-in-chief of all armed forces of the Philippines, and, whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion or imminent danger thereof, when the public safety requires it, he may suspend the
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under Martial Law.
Notably, the 1935 and 1973 Constitutions only specify the instances when martial law may be declared or when the
writ may be suspended.
The 1987 Constitution, on the other hand, not only explicitly includes the specific grounds for the activation of such
emergency powers, but also imposes express limitations on the exercise of such powers. Upon the Presidents
declaration of martial law or suspension of the writ, the following safeguards are automatically set into motion: (1)
the duration of martial law or suspension of the writ is limited to a period not exceeding sixty days; (2) the President
is mandated to submit a report to Congress within forty-eight hours from the declaration or suspension; and (3) the
declaration or suspension is subject to review by Congress, which may revoke such declaration or suspension. If
Congress is not in session, it shall convene within 24 hours without need for call.53 In addition, the sufficiency of the
factual basis of the declaration, suspension, or their extension is subject to review by the Supreme Court in an
appropriate proceeding.
The mechanism and limitations laid down in Section 18, Article VII of the Constitution in declaring martial law or
suspending the writ were introduced precisely to preclude a repetition of the kind of martial law imposed by
President Marcos, which ushered in a permanent authoritarian regime. As Father Bernas wrote in his book:
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to impose
authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period upholding the
actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional jurisprudence. The members of
the Constitutional Commission, very much aware of these facts, went about reformulating the Commander-in-Chief
powers with a view to dismantling what had been constructed during the authoritarian years. The new formula
included revised grounds for the activation of emergency powers, the manner of activating them, the scope of the
powers, and review of presidential action.54
Consistent with the framers intent to reformulate the Commander-in-Chief powers of the President, the 1987
Constitution requires the concurrence of two conditions in declaring martial law or suspending the writ, namely, (1)

an actual invasion or rebellion, and (2) public safety requires the exercise of such power.55 The Constitution no
longer allows imminent danger of rebellion or invasion as a ground for the declaration or suspension, which the
1935 and 1973 Constitutions expressly permitted.
In the present case, President Arroyo grounded the declaration of martial law and suspension of the writ on the
existence of rebellion in Maguindanao. In her Report submitted to Congress, President Arroyo cited the following
instances as constitutive of rebellion:
1. Local government offices in the province of Maguindanao were closed and ranking local government
officials refused to discharge their functions, which hindered the investigation and prosecution team from
performing their tasks;
2. The Local Civil Registrar of Maguindanao refused to accept the registration of the death certificates of the
victims purportedly upon the orders of Andal Ampatuan Sr.;
3. The local judicial system has been crippled by the absence or non-appearance of judges of local courts,
thereby depriving the government of legal remedies in their prosecutorial responsibilities (i.e. issuance of
warrants of searches, seizure and arrest). While the Supreme Court has designated an Acting Presiding
Judge from another province, the normal judicial proceedings could not be carried out in view of threats to
their lives or safety, prompting government to seek a change of venue of the criminal cases after informations
have been filed.
xxxx
Indeed, the nature, quantity and quality of their weaponry, the movement of heavily armed rebels in
strategic positions, the closure of the Maguindanao Provincial Capitol, Ampatuan Municipal Hall, Datu
Unsay Municipal Hall, and fourteen other municipal halls, and the use of armored vehicles, tanks and patrol
cars with unauthorized "PNP/Police" markings, all together confirm the existence of armed public uprising
for the political purpose of:
(1) removing allegiance from the national government of the Province of Maguindanao; and,
(2) depriving the Chief Executive of her powers and prerogatives to enforce the laws of the land and
to maintain public order and safety.
While the government is at present conducting legitimate operations to address the on-going rebellion,
public safety still requires the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the Province of Maguindanao until the time that such rebellion is completely
quelled.56 (Emphasis supplied)
The question now is whether there was probable cause, which is the required quantum of proof, to declare the
existence of rebellion justifying the Presidents declaration of martial law and suspension of the writ.
The answer is in the negative.
The contemporaneous public statements made by the Presidents alter egos explaining the grounds for the issuance
of Proclamation No. 1959 negate rather than establish the existence of an actual rebellion in Maguindanao.
During the interpellations in the Joint Session of Congress, convened pursuant to the provisions of Section 18,
Article VII of the Constitution, then Executive Secretary Eduardo Ermita admitted the absence of an actual rebellion
in Maguindanao, to wit:
REP. LAGMAN. Mr. Speaker, Mr. President, a perusal of the text of Proclamation No. 1959 would show the absence
of a clear and categorical finding or determination that actual rebellion is occurring in Maguindanao. Would that be
an accurate observation of a reading of the text of Proclamation No. 1959?
MR. ERMITA. Your Honor, you may be correct that there was no actual rebellion going on. However, all the
indicators that rebellion is, indeed, being committed and happening on the ground is because of the presence of the
armed groups that prevent authorities from being able to do its duty of even effecting the arrest of those who should
be arrested in spite of the testimonies of witnesses.
REP. LAGMAN. Well, we are happy to note that there is an admission that there was no actual rebellion in
Maguindanao. But the presence of armed groups would be indicative of lawless violence which is not synonymous
to rebellion. As a matter of fact, the Maguindanao situationer which was made by Police Director Andres Caro was
premised on a statement that this was the worst election-related violence an act of gross lawlessness but

definitely not related to rebellion.

x x x x57 (Emphasis supplied)
Also, during the Joint Session, then Senator (now President) Benigno S. Aquino III pointed out the public statements
made by former Department of Interior and Local Government Secretary Ronaldo V. Puno, then Armed Forces of
the Philippines spokesperson Lt. Col. Romeo Brawner, and former Defense Secretary Norberto Gonzales admitting
there was no need for martial law:
THE SENATE PRESIDENT. With the indulgence of the Chamber and the Speaker, may we request now to allow the
distinguished Gentleman from Tarlac, Senator Benigno "Noynoy" Aquino III the floor.
SEN. AQUINO. Thank you, Mr. President. May I direct my first question to Secretary Puno. And this is to lay the
proper predicate for our first question. The newspaper has been quoting Secretary Puno as not having
recommended the imposition of martial law prior to its imposition in Maguindanao. May we know if this was a correct
attribution to the Honorable Secretary.
MR. PUNO. Until, Your Honor, Mr. Speaker, Mr. Senate President, until the situation developed where police officers
went absent on leave and joined the rebel forces, and a significant segment of the civilian armed volunteers of the
local governments constituted themselves into a rebel group, until that time I did not believe that it was necessary
that martial law be declared. But upon receipt of a report from the Armed Forces of the Philippines and the briefing
conducted with the National Security Council, where it was made clear that a separate rebel armed group had
already been organized, we concurred, Your Honor, with the recommendation on martial law.
SEN. AQUINO. For the record, Mr. Senate President and Mr. Speaker, the AFP, we understand, through the
spokesperson, Lt. Col. Romeo Brawner, declared on 13 November 2009 that there is no need for the declaration of
martial law in Maguindanao or elsewhere in the country because the AFP and PNP are on top of the situation. He
was quoted as saying, and we quote: "We now have a level of normalcy in the Province of Maguindanao, primarily
because of the occupation by our government forces and our law enforcement agencies of the seats of
government." Secretary Norberto Gonzales, who unfortunately is not present, declared on December 1, 2009 that
the governments effort to contain the tension in the province is holding ground. We also have now the admission by
the honorable Secretary Puno that prior to the undated national security briefing, he was also of the opinion that
martial law was not necessary in Maguindanao. x x x58
Even before the interpellations in Congress, then Executive Secretary Ermita publicly confirmed the inadequacies of
Proclamation No. 1959:
Well have to get the report from the field from the AFP and PNP that the conditions that prompted the President to
issue the proclamation, have improved, and therefore, the threat of further lawlessness and probability of
rebellion is already down.59 (Emphasis supplied)
Significantly, at a press conference, then Secretary of Justice Agnes Devanadera declared, "We noticed and
observed there was a rebellion in the offing." In another press briefing, Devanadera stated that "rebellion which
does not necessarily involve a physical takeover by armed elements as argued by some critics of the Presidents
order, was "looming in Maguindanao."60 In short, the Department of Justice Secretary, who is the principal legal
officer of the Arroyo administration, publicly admitted that there was only a "looming" rebellion, a "rebellion in the
offing," in Maguindanao.
Likewise, in a press conference, "the AFP Chief of Staff claimed that armed groups, numbering between 40 to 400
men and spread out in the province, planned to prevent the arrest of members of the Ampatuan family, the prime
suspects in the Maguindanao massacre. He stated, "Based on the reports we received, there were a lot of
groupings of armed groups in different places. We also received reports that they have plans to undertake hostile
action if ever government officials, the Ampatuans particularly, were taken in custody. We felt this was very
imminent threat, thats why we recommended this proclamation."61
Then Defense Secretary Norberto Gonzales was quoted as stating that the "recommendation to declare martial law
in Maguindanao is a sensitive matter that needs to be studied."62 In an interview, Gonzales said, "titingnan natin (we
will see) how the situation develops there."63 He further stated, "As of now, I think whatever the government is doing
so far is really effective. We will wait for the results of the work of Secretary Devanadera of Justice and also
Secretary Puno of DILG. So, so far maganda naman yun takbo ng ating operation doon."64 Gonzales added, "Yung
tungkol sa martial law, alam mo sensitive na bagay yan kaya pag-aaralan natin."65
The admissions and public statements made by members of the Cabinet, who are the Presidents alter egos, as well

as the public assessments made by the highest ranking military officials, clearly demonstrate that instead of being
anchored on the existence of an actual rebellion, Proclamation No. 1959 was based on a mere threat, or at best an
imminent threat of rebellion, or a rebellion "in the offing."66 This undeniably runs counter to the letter and intent of
the Constitution. A looming rebellion is analogous to imminent danger of rebellion, which was deliberately eliminated
by the framers of the 1987 Constitution as a ground for the declaration of martial law precisely to avoid a repetition
of the misguided and oppressive martial law imposed by former President Marcos.
There is absolutely nothing which shows that the Ampatuans and their armed followers, at any point in time,
intended to overthrow the government. On the contrary, the Ampatuans were publicly known as very close political
allies of President Arroyo. There is not a single instance where the Ampatuans denounced, expressly or impliedly,
the government, or attempted to remove allegiance to the government or its laws or to deprive the President or
Congress of any of their powers. Based on the records, what the government clearly established, among others,
were (1) the existence of the Ampatuans private army; and (2) the Ampatuans vast collection of high powered
firearms and ammunitions.
These shocking discoveries, however, do not amount to rebellion as defined in Article 134 of the Revised Penal
Code. Based on the statements made by ranking government and military officials, and as clearly found by the RTCQuezon City in Criminal Case No. Q-10-162667 and affirmed by the Court of Appeals, there was no public
uprising and taking arms against the government for the purpose of removing from the allegiance to the
government or its laws the territory of the Philippines or any part thereof, or depriving the Chief Executive
or Congress, wholly or partially, of any of their powers and prerogatives. The Ampatuans amassing of
weaponry, including their collection of armored cars, tanks and patrol cars, merely highlights this political clans
unbelievably excessive power and influence under the Arroyo administration.
To repeat, only in case of actual invasion or rebellion, when public safety requires it, may the President declare
martial law or suspend the writ. In declaring martial law and suspending the writ in Maguindanao in the absence of
an actual rebellion, President Arroyo indisputably violated the explicit provisions of Section 18, Article VII of the
Constitution.
Conclusion
Thirty-seven years after President Marcos Proclamation No. 1081, President Arroyo issued Proclamation No. 1959
declaring martial law and suspending the privilege of the writ of habeas corpus in the province of Maguindanao,
except in MILF identified areas. President Marcos martial law, justified to counteract the Communist insurgency in
the country,67 turned out to be a vehicle to establish a one-man authoritarian rule in the country. Expectedly,
President Arroyos Proclamation No. 1959 refreshed the nations bitter memories of the tyranny during the Martial
Law regime of President Marcos, and sparked the publics vigilance to prevent a possible recurrence of that horrible
past.
In issuing Proclamation No. 1959, President Arroyo exercised the most awesome and powerful among her
graduated Commander-in-Chief powers to suppress a supposed rebellion in Maguindanao, following the massacre
of 57 civilians in the worst election-related violence in the countrys history. Since then, the government branded the
Ampatuans, the alleged masterminds of the massacre, as rebels orchestrating the overthrow of the Arroyo
administration. However, the events before, during, and after the massacre negate the existence of an armed
uprising aimed at bringing down the government, but rather point to a surfeit of impunity and abuse of power of a
political clan closely allied with the Arroyo administration. In short, Proclamation No. 1959 was issued without an
actual rebellion justifying the same.
Apparently, President Arroyo resorted to martial law and suspension of the writ, not to quell a purported rebellion
because there was absolutely none, but to show her indignation over the gruesome massacre and her swift
response in addressing the difficult situation involving her close political allies. She was reported to be "under
pressure to deliver, amid rising public outrage and international condemnation of the massacre."68 However,
mounting pressure to bring the murderers to justice, without any invasion or rebellion in Maguindanao, does not
warrant the imposition of martial law or suspension of the writ. Rather, what the nation expects, and what the victims
and their families truly deserve, is the speedy and credible investigation and prosecution, and eventually the
conviction, of the merciless killers.
In sum, Proclamation No. 1959 was anchored on a non-existent rebellion. Based on the events before, during and
after the Maguindanao massacre, there was obviously no rebellion justifying the declaration of martial law and
suspension of the writ. The discovery of the Ampatuans private army and massive weaponry does not establish an
armed public uprising aimed at overthrowing the government. Neither do the closure of government offices and the
reluctance of the local government officials and employees to report for work indicate a rebellion.
The Constitution is clear. Only in case of actual invasion or rebellion, when public safety requires it, can a state of

martial law be declared or the privilege of the writ of habeas corpus be suspended. Proclamation No. 1959 cannot
be justified on the basis of a threatened, imminent, or looming rebellion, which ground was intentionally deleted by
the framers of the 1987 Constitution. Considering the non-existence of an actual rebellion in Maguindanao,
Proclamation No. 1959 is unconstitutional for lack of factual basis as required under Section 18, Article VII of the
Constitution for the declaration of martial law and suspension of the privilege of the writ of habeas corpus.
Accordingly, I vote to GRANT the petitions and DECLARE Proclamation No. 1959 UNCONSTITUTIONAL for failure
to comply with Section 18, Article VII of the Constitution.
ANTONIO T. CARPIO
Associate Justice

Footnotes
1 Presidential Adviser for Mindanao Jesus Durezas statement reported in Philippine Daily Inquirer on 23

November
2009
(http://newsinfo.inquirer.net/breakingnews/nation/view/20091123-237934/Wife-ofgubernatorial-bet-35-killed-in-Maguindanao [accessed on 4 November 2011], Wife of gubernatorial bet, 35
killed in Maguindanao Palace adviser calls for state of emergency) and in Philippine Star on 24 November
2009
(http://www.philstar.com/article.aspx?articleid=526314
[accessed
on
4
November
2011
;Maguindanaomassacre).
The mass murder of the journalists was tagged "as the darkest point of democracy and free press in
this recent time." (Statement of NUJP Cebu Chapter President Rico Lucena reported in philstar.com
with title Maguindanao death toll now 46: Emergency rule in two provinces
(http://www.philstar.com/article.aspx?articleid=526616 [accessed on 4 November 2011 ).
The massacre was considered "one of the deadliest single events for the press in memory" and the
Philippines the worlds worst place to be a journalist, according to international press freedom
watchdog Committee to Protect Journalists (CPJ). (http://www.gmanews.tv/story/177821/theampatuan-massacre-a-map-and-timeline [accessed on 4 November 2011])
2 Fifty-five of the casualties were identified as follows:

1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.

Bai Genelyn T. Mangudadatu Wife of Mangudadatu

Bai Eden Mangudadatu Sister/Vice Mayor, Mangudadatu, Maguindanao
Pinky Balaiman Cousin of Mangudadatu
Mamotavia Mangudadatu Aunt
Bai Farida Mangudadatu Youngest sister
Rowena Ante Mangudadatu Relative
Faridah Sabdula Sister
Soraida Vernan Cousin
Raida Sapalon Abdul Cousin
Rahima Puto Palawan Relative
Lailan "Ella" Balayman Relative
Walida Ali Kalim Relative
Atty. Concepcion Brizuela Lawyer
Atty. Cynthia Oquendo Ogano Lawyer
Cataleno Oquendo Father of Atty. Cynthia Oquendo
Marife Montano Saksi News, Gensan
Alejandro Bong Reblando Manila Bulletin, Gensan
Mc Delbert "Mac Mac" Areola UNTV Gensan
Rey Marisco Periodico Ini, Koronadal City
Bienvenido Jun Lagarta Prontierra News, Koronadal City
Napoleon Salaysay Mindanao Gazette
Eugene Depillano UNTV Gen San
Rosell Morales News Focus
Arturo Betia Periodico Ini, Gen San
Noel Decena Periodico Ini
John Caniba Periodico Ini
Junpee Gatchalian DXGO, Davao City
Victor Nunez UNTV Gen San
Andres Teodoro Central Mindanao Inquirer

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-4254

September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.
Ambrosio T. Dollete for petitioner.
First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.
TUASON, J.:
This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of this Court of
July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that decision, written by Mr.
Justice Bengzon:
The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from Shanghai as a
secret operative by the Japanese forces during the latter's regime in these Islands. Upon liberation he was
arrested as a Japanese spy, by U.S. Army Counter Intelligence Corps. Later he was handed to
theCommonwealth Government for disposition in accordance with Commonwealth Act No. 682. Thereafter,
the People's Court ordered his release. But the deportation Board taking his case up, found that having no
travel documents Mejoff was illegally in this country, and consequently referred the matter to the immigration
authorities. After the corresponding investigation, the Board of commissioners of Immigration on April 5, 1948,
declared that Mejoff had entered the Philippines illegally in 1944, without inspection and admission by the
immigration officials at a designation port of entry and, therefore, it ordered that he be deported on the first
available transportation to Russia. The petitioner was then under custody, he having been arrested on March
18, 1948. In May 1948 he was transferred to the Cebu Provincial Jail together with three other Russians to
await the arrival of some Russian vessels. In July and August of that year two boats of Russian nationality
called at the Cebu Port. But their masters refused to take petitioner and his companions alleging lack of
authority to do so. In October 1948 after repeated failures to ship this deportee abroad, the authorities
removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present time, inasmuch
as the Commissioner of Immigration believes it is for the best interests of the country to keep him under
detention while arrangements for his departure are being made.
The Court held the petitioner's detention temporary and said that "temporary detention is a necessary step in the
process of exclusion or expulsion of undesirable aliens and that pending arrangements for his deportation, the
Government has the right to hold the undesirable alien under confinement for a reasonable lenght of time." It took
note of the fact, manifested by the Solicitor General's representative in the course of the of the oral argumment, that
"this Government desires to expel the alien, and does not relish keeping him at the people's expense . . . making
efforts to carry out the decree of exclusion by the highest officer of the land." No period was fixed within which the
immigration authorities should carry out the contemplated deportation beyond the statement that "The meaning of
'reasonable time' depends upon the circumstances, specially the difficulties of obtaining a passport, the availability
of transportation, the diplomatic arrangements with the governments concerned and the efforts displayed to send
the deportee away;" but the Court warned that "under established precedents, too long a detention may justify the
issuance of a writ of habeas corpus."
Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision
dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from custody. Mr.
Justice Paras qualified his dissent by stating that he might agree "to further detention of the herein petitioner,
provided that he be released if after six months, the Government is still unable to deport him." This writer joined in
the latter dissent but thought that two months constituted reasonable time.

Over two years having elapsed since the decision aforesaid was promulgated, the Government has not found way
and means of removing the petitioner out of the country, and none are in sight, although it should be said in justice
to the deportation authorities, it was through no fault of theirs that no ship or country would take the petitioner.
Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18, 1946, 157
F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true however, as
impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against whom no charge has been
made other than that their permission to stay has expired, may not indefinitely be kept in detention. The protection
against deprivation of liberty without due process of law and except for crimes committed against the laws of the
land is not limited to Philippine citizens but extends to all residents, except enemy aliens, regardless of nationality.
Whether an alien who entered the country in violation of its immigration laws may be detained for as long as the
Government is unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was
not unlawful; he was brought by the armed and belligerent forces of a de facto government whose decrees were law
furing the occupation.
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of Human Rights"
and approved by the General Assembly of the United Nations of which the Philippines is a member, at its plenary
meeting on December 10, 1948, the right to life and liberty and all other fundamental rights as applied to all human
beings were proclaimed. It was there resolved that "All human beings are born free and equal in degree and rights"
(Art. 1); that "Everyone is entitled to all the rights and freedom set forth in this Declaration, without distinction of any
kind, such as race, colour, sex, language, religion, political or other opinion, nationality or social origin, property,
birth, or other status" (Art. 2): that "Every one has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one
shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.
In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody an alien
who has been detained an unreasonably long period of time by the Department of Justice after it has become
apparent that although a warrant for his deportation has been issued, the warrant can not be effectuated;" that "the
theory on which the court is given the power to act is that the warrant of deportation, not having been able to be
executed, is functus officio and the alien is being held without any authority of law." The decision cited several cases
which, it said, settled the matter definitely in that jurisdiction, adding that the same result had reached in
innumerable cases elsewhere. The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401,
404; Caranica vs. Nagle, 9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex
parte Matthews, D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.
The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948), 90 Fed.
Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person, formerly a Polish
national, resident in the United States since 1911 and many times serving as a seaman on American vessels both in
peace and in war, was ordered excluded from the United States and detained at Ellis Island at the expense of the
steamship company, when he returned from a voyage on which he had shipped from New York for one or more
European ports and return to the United States. The grounds for his exclusion were that he had no passport or
immigration visa, and that in 1937 had been convicted of perjury because in certain documents he presented
himself to be an American citizen. Upon his application for release on habeas corpus, the Court released him upon
his own recognizance. Judge Leibell, of the United States District Court for the Southern District of New York, said in
part:
When the return to the writ of habeas corpus came before this court, I suggested that all interested parties . . .
make an effort to arrange to have the petitioner ship out of some country that he would receive him as a
resident. He is, a native-born Pole but the Polish Consul has advised him in writing that he is no longer a
Polish subject. This Government does not claim that he is a Polish citizen. His attorney says he is a stateless.
The Government is willing that he go back to the ship, but if he were sent back aboard a ship and sailed to
the Port (Cherbourg, France) from which he last sailed to the United States, he would probably be denied
permission to land. There is no other country that would take him, without proper documents.
It seems to me that this is a genuine hardship case and that the petitioner should be released from custody
on proper terms. . . .
What is to be done with the petitioner? The government has had him in custody almost seven months and
practically admits it has no place to send him out of this country. The steamship company, which employed
him as one of a group sent to the ship by the Union, with proper seaman's papers issued by the United States
Coast Guard, is paying $3 a day for petitioner's board at Ellis Island. It is no fault of the steamship company
that petitioner is an inadmissible alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own recognizance.
He will be required to inform the immigration officials at Ellis Island by mail on the 15th of each month, stating
where he is employed and where he can be reached by mail. If the government does succeed in arranging for
petitioner's deportation to a country that will be ready to receive him as a resident, it may then advise the
petitioner to that effect and arrange for his deportation in the manner provided by law.
Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to the quandry in
which the parties here finds themselves, solution which we think is sensible, sound and compatible with law and the
Constitution. For this reason, and since the Philippine law on immigration was patterned after or copied from the
American law and practice, we choose to follow and adopt the reasoning and conclusions in the Staniszewski
decision with some modifications which, it is believed, are in consonance with the prevailing conditions of peace and
order in the Philippines.
It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the petitioner was
engaged in subversive activities, and fear was expressed that he might join or aid the disloyal elements if allowed to
be at large. Bearing in mind the Government's allegation in its answer that "the herein petitioner was brought to the
Philippines by the Japanese forces," and the fact that Japan is no longer at war with the United States or the
Philippines nor identified with the countries allied against these nations, the possibility of the petitioner's entertaining
or committing hostile acts prejudicial to the interest and security of this country seems remote.
If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged detention
would be unwarranted by law and the Constitution, if the only purpose of the detention be to eliminate a danger that
is by no means actual, present, or uncontrolable. After all, the Government is not impotent to deal with or prevent
any threat by such measure as that just outlined. The thought eloquently expressed by Mr. Justice Jackson of the
United States Supreme Court in connection with the appliccation for bail of ten Communists convicted by a lower
court of advocacy of violent overthrow of the United States Government is, in principle, pertinent and may be availed
of at this juncture. Said the learned Jurist:
The Governmet's alternative contention is that defendants, by misbehavior after conviction, have forfeited
their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to
what they have done since their conviction. If I assume that defendants are disposed to commit every
opportune disloyal to act helpful to Communist countries, it is still difficult to reconcile with traditional American
law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. lmprisonment
to protect society from predicted but unconsummated offenses is so unprecedented in this country and so
fraught with danger of excesses and injustice that I am loath to resort it, even as a discretionary judicial
technique to supplement conviction of such offenses as those of which defendants stand convicted.
But the right of every American to equal treatment before the law is wrapped up in the same constitutional
bundle with those of these Communists. If an anger or disgust with these defendants we throw out the
bundle, we alsocast aside protection for the liberties of more worthy critics who may be in opposition to the
government of some future day.
xxx

xxx

xxx

1wphl.nt

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very
practical aspect of this application which must not be overlooked or underestimated that is the disastrous
effect on the reputation of American justice if I should now send these men to jail and the full Court later
decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial
question about a conviction implies a more than negligible risk of reversal. Indeed this experience lies back of
our rule permitting and practice of allowing bail where such questions exist, to avoid the hazard of
unjustifiably imprisoning persons with consequent reproach to our system of justice. If that is prudent judicial
practice in the ordinary case, how much more important to avoid every chance of handing to the Communist
world such an ideological weapon as it would have if this country should imprison this handful of Communist
leaders on a conviction that our highest Court would confess to be illegal. Risks, of course, are involved in
either granting or refusing bail. I am naive enough to underestimate the troublemaking propensities of the
defendants. But, with the Department of Justice alert to the the dangers, the worst they can accomplish in the
short time it will take to end the litigation is preferable to the possibility of national embarrassment from a
celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances must we permit
their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom.
The way to avoid that risk is not to jail these men until it is finally decided that they should stay jailed.
If that case is not comparable with ours on the issues presented, its underlying principle is of universal application.
In fact, its ratio decidendi applies with greater force to the present petition, since the right of accused to bail pending
apppeal of his case, as in the case of the ten Communists, depends upon the discretion of the court, whereas the

right to be enlarged before formal charges are instituted is absolute. As already noted, not only are there no charges
pending against the petitioner, but the prospects of bringing any against him are slim and remote.
Premises considered, the writ will issue commanding the respondents to release the petitioner from custody upon
these terms: The petitioner shall be placed under the surveillance of the immigration authorities or their agents in
such form and manner as may be deemed adequate to insure that he keep peace and be available when the
Government is ready to deport him. The surveillance shall be reasonable and the question of reasonableness shall
be submitted to this Court or to the Court of First Instance of Manila for decision in case of abuse. He shall also put
up a bond for the above purpose in the amount of P5,000 with sufficient surety or sureties, which bond the
Commissioner of Immigration is authorized to exact by section 40 of Commonwealth Act No. 613.
No costs will be charged.
Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions
PABLO, M., disidente:
Disiento
En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante Boris Mejoff
(G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas procedente de
Shanghai como espia japones; en la liberacion, el ejercito americano le arresto por se espia, habiendo sido mas
tarde entregado al Gobierno del Commonwealth para ser tratado de acuerdo con la ley No.682; pero como bajo el
Codgo Penal Revisado, antes de su enmienda por la Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al
extranjero que comete traicion, Mejoff fue puesto en libertad. Despues de una debida investigacion, la Junta de
Departacion encontra que el solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de
Inmigacion, la cual ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui
ilegalmente; fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que llegaron
a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion para su departacion,
Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de tenido mientras el Gobierno no encuenra
medio de transportarle a Rusia.
La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought by the armed
and belligerent forces of a de facto government whose decrees were law during the occupation." Es tan ilegal la
entrada del solicitante como la del ejercito al que sirvio como espia. Ninguno tiene derecho a permanecer aqui.
Puesto que fue vencido el ejercito invasor que le trajo, el solicitante no tiene derecho a pemanecer aqui ni un
minuto mas. Si desea proteccion, debe acudir al Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta
aqui no le da titulo para permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo de Filipinas no
tiene derecho a pedir igual trato que aquel ha entrado de buena fe. Es que Filipinos tiene la obligacion de acoger a
un ciudadano indeseable de Rusia? Desde cuando tiene que allanarse una nacion a ser residencia de una
extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene indiscutible derecho a deportar y
expulsar de su territorio a todo extranjero indeseable.
El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer aqui. Puede ser
departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno que otro motivo, o por odio al
comunisomo, dejasen su pais y emigrasen aqui reclamando igual derecho, no habria territorio suficiente para ellos.
Se puede decir otro tanto de los chinos que, so pretexto de no querer someterse al regimen comunista, optasen por
resider para siempre aqui. Y si los mismos communistas chinos viniesen clandestinamente y despues reclamasen
igual proteccion como la concedida a Mejoff, tendreos que darles por el gusto?
Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal Declaration
of Human Rights", en la que se establece, entre otras cosas, que "no one shall be subjected to arbitrary arrest,
detention or exile." Yo soy de los que creen firmemente en lo sagrado de esta resolucion; no puedo permitir que se
detenga y se arreste a alguien sin motivo justificado, de una manera arbitraria; pero el solicitante no esta detenido
de esta manera, lo esta de una manera provisional. Tan pronto como haya barco disponible para su deportacion o
tan pronto como pueda embarcarse en algun barco para el extenjero o para cualquier otro punto a donde quiera ir,
dejara de ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado como
cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no hubiera venido aqui para
ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si hubiera venido como visitante, por ejemplo,
y, por azares de la fortuna, no pudo salir, yo seria el primero en abogar por su liberacion inmediata.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-2662

March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S.
HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding General of the
Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444 who is now charged before
a military Commission convened by the Chief of Staff of the Armed forces of the Philippines with having unlawfully
disregarded and failed "to discharge his duties as such command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the
laws and customs of war" comes before this Court seeking to establish the illegality of Executive Order No. 68 of
the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from
participating in the prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a signatory nor an
adherent to the Hague Convention on Rules and Regulations covering Land Warfare and therefore petitioners is
charged of 'crimes' not based on law, national and international." Hence petitioner argues "That in view off the
fact that this commission has been empanelled by virtue of an unconstitutional law an illegal order this commission
is without jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the Commission in behalf
of the United State of America of attorneys Melville Hussey and Robert Port who are not attorneys authorized by the
Supreme Court to practice law in the Philippines is a diminution of our personality as an independent state and their
appointment as prosecutor are a violation of our Constitution for the reason that they are not qualified to practice law
in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not being a party in
interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation governing the trial
of accused war criminals, was issued by the President of the Philippines on the 29th days of July, 1947 This Court
holds that this order is valid and constitutional. Article 2 of our Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally accepted
principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day including the Hague
Convention the Geneva Convention and significant precedents of international jurisprudence established by the
United Nation all those person military or civilian who have been guilty of planning preparing or waging a war of

aggression and of the commission of crimes and offenses consequential and incidental thereto in violation of the
laws and customs of war, of humanity and civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as Commander in chief of all
our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we

said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities incident of war
may remain pending which should be disposed of as in time of war. An importance incident to a conduct of
war is the adoption of measure by the military command not only to repel and defeat the enemies but to seize
and subject to disciplinary measure those enemies who in their attempt to thwart or impede our military effort
have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a
military commission for the trial and punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long as a technical state of war continues. This
includes the period of an armistice or military occupation up to the effective of a treaty of peace and may
extend beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar
Association Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished aspect of
war namely the trial and punishment of war criminal through the issuance and enforcement of Executive Order No.
68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts committed in
violation of the Hague Convention and the Geneva Convention because the Philippines is not a signatory to the first
and signed the second only in 1947. It cannot be denied that the rules and regulation of the Hague and Geneva
conventions form, part of and are wholly based on the generally accepted principals of international law. In facts
these rules and principles were accepted by the two belligerent nation the United State and Japan who were
signatories to the two Convention, Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for our Constitution has been deliberately
general and extensive in its scope and is not confined to the recognition of rule and principle of international law as
continued inn treaties to which our government may have been or shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was under the
sovereignty of United States and thus we were equally bound together with the United States and with Japan to the
right and obligation contained in the treaties between the belligerent countries. These rights and obligation were not
erased by our assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the right on
our own of trying and punishing those who committed crimes against crimes against our people. In this connection it
is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the prosecution of
those charged with the crime of treason committed during then Commonwealth because it is an offense
against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a Commonwealth
are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert Port in the
prosecution of his case on the ground that said attorney's are not qualified to practice law in Philippines in
accordance with our Rules of court and the appointment of said attorneys as prosecutors is violative of our national
sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a special law and not by
the Rules of court which govern ordinary civil court. It has already been shown that Executive Order No. 68 which
provides for the organization of such military commission is a valid and constitutional law. There is nothing in said
executive order which requires that counsel appearing before said commission must be attorneys qualified to
practice law in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals that
counsel for the parties are usually military personnel who are neither attorneys nor even possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is only fair and
proper that United States, which has submitted the vindication of crimes against her government and her people to a
tribunal of our nation should be allowed representation in the trial of those very crimes. If there has been any

relinquishment of sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of comity is to allow
them representation in said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the personality of attorneys
Hussey and Port as prosecutors. It is of common knowledge that the United State and its people have been equally
if not more greatly aggrieved by the crimes with which petitioner stands charged before the Military Commission. It
can be considered a privilege for our Republic that a leader nation should submit the vindication of the honor of its
citizens and its government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes charged
which fall under the provisions of Executive Order No. 68, and having said petitioner in its custody, this Court will not
interfere with the due process of such Military commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for Violation of the
laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to practice law
were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of the Philippines
the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also challenged the
personality of Attorneys Hussey and Port to appear as prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the Philippines as
accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It appearing that
they are aliens and have not been authorized by the Supreme Court to practice law there could not be any question
that said person cannot appear as prosecutors in petitioner case as with such appearance they would be practicing
law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved in the challenge
against the validity of Executive Order No. 68. Said order is challenged on several constitutional ground. To get a
clear idea of the question raised it is necessary to read the whole context of said order which is reproduced as
follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND
REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the Constitution and laws
of the Philippines do hereby establish a National War Crimes Office charged with the responsibility of
accomplishing the speedy trial of all Japanese accused of war crimes committed in the Philippines and
prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate General of the Army of
the Philippines and shall function under the direction supervision and control of the Judge Advocate General.
It shall proceed to collect from all available sources evidence of war crimes committed in the Philippines from
the commencement of hostilities by Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section General Headquarters,

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 182498

December 3, 2009

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL
CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R.
GOLTIAO, Regional Director of ARMM, PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the decision dated March 7, 2008 of the Court of Appeals (CA) in
C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the enforced disappearance of Engineer Morced N.
Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The
dispositive portion of the CA decision reads:
WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an
"enforced disappearance" within the meaning of the United Nations instruments, as used in the Amparo Rules. The
privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group
(CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent
GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO,
Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response,
to aid him as their superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect
the life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr.
Morced Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General,
Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet, Zamboanga
City, both being with the military, which is a separate and distinct organization from the police and the CIDG, in
terms of operations, chain of command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of violation
against the rights to life, liberty and security.3 It embodies, as a remedy, the courts directive to police agencies to
undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N.
Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate
remedies to address the disappearance. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as
a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil
cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure
of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without
bringing the level of their complicity to the level of responsibility defined above; or who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of disclosure; or those who carry, but have failed
to discharge, the burden of extraordinary diligence in the investigation of the enforced disappearance. In all these

cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that
the life of the victim is preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the
issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense,
the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read,
too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the records of the case, are summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the
Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin
Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a
seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy
him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis
was no longer around.5 The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon
and even left his room key with the desk.6 Kunnong looked for Tagitis and even sent a text message to the latters
Manila-based secretary who did not know of Tagitis whereabouts and activities either; she advised Kunnong to
simply wait.7
On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and
Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station.8 On
November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding
Tagitis disappearance.9
More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition)
with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police
(PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and
Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After reciting Tagitis
personal circumstances and the facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while
out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded
the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised
to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was
closed and locked;
9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of
Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis, including cell phones, documents
and other personal belongings were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported
the matter to the local police agency;
11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately
given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known
to be fighting against the government;
12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported the matter to
the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and coordinators of the IDB
Scholarship Programme in the Philippines, who alerted the office of the Governor of ARMM who was then preparing
to attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch,
Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
14. All of these efforts of the [respondent] did not produce any positive results except the information from persons
in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men;
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find her husband, but [respondents] request and pleadings failed to
produce any positive results;
18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject
of the petition, was not missing but was with another woman having good time somewhere, which is a clear
indication of the [petitioners] refusal to help and provide police assistance in locating her missing husband;
19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family
or even to provide truthful information to [the respondent] of the subjects whereabouts, and/or allow [the
respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters
again in Cotobato City and also to the different Police Headquarters including [those] in Davao City, in Zamboanga
City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search
for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying [sic] to the different suggestions of
these police officers, despite of which, her efforts produced no positive results up to the present time;
21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent],
informed her that they are not the proper persons that she should approach, but assured her not to worry because
her husband is [sic] in good hands;
22. The unexplained uncooperative behavior of the [petitioners] to the [respondents] request for help and failure and
refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr.
Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in physical possession and custody of [respondents] husband, Engr.
Tagitis;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the
circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get the release of
subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], their intelligence operatives and the like
which are in total violation of the subjects human and constitutional rights, except the issuance of a WRIT OF
AMPARO. [Emphasis supplied]
On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on
January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of
the writ.11
In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or
knowledge of Tagitis alleged abduction. They argued that the allegations of the petition were incomplete and did not
constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay
evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal
knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal
killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police,
held case conferences, rendered legal advice in connection to these cases; and gave the following summary:13

xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the
alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY
Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an
unidentified companion. It was only after a few days when the said victim did not return that the matter was
reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and
locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report
stated among others that: subject person attended an Education Development Seminar set on October 28,
2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007,
at around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in the morning of the same date, he
instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu
on October 31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the premises of ASY
Pension House as stated by the cashier of the said pension house. Later in the afternoon, the student
instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did
not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information
gathering to locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis
who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October
30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG
or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available
under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate,
however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the
cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and
secure their conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the
Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of
the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent
investigation on the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at
Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around
six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of
the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At
around six oclock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for
Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he
purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr.
Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement
of the government.
That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who
was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007
and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its
department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic] alleged enforced
disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo A. Espinas affidavit which
alleged that:16
xxxx
That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally
[sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was
mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the
alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged
covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my
capacity as the chief PACER [sic] considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-for-ransom groups which
until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case.
Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap
anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental
(PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the
persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS,
which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the cause, manner, location and time of disappearance
as well as any pattern or practice that may have brought about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a
written report regarding the disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax his written report.
That the investigation and measures being undertaken to locate/search the subject in coordination with Police
Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO)
and other AFP and PNP units/agencies in the area are ongoing with the instruction not to leave any stone unturned
so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit
detailing the actions that he had taken upon receipt of the report on Tagitis disappearance, viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and
when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio
Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser
Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police
Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine
National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village,
Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest;
7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was
requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned
back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the
information counter regarding his whereabouts [sic], the person in charge in the counter informed him that Engr.

Tagitis had left the premises on October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial
Office and other units through phone call and text messages to conduct investigation [sic] to determine the
whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover
and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements
from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and
apprehend the person or persons involved in the disappearance so that they shall be brought before a competent
court;
9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused
the following directives:
a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to
conduct joint investigation with CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to
expedite compliance to my previous directive;
c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for
investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension
House and student scholars of IDB in order to secure corroborative statements regarding the disappearance
and whereabouts of said personality;
d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to
establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and
Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with
the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his
disappearance;
e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and
Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause
and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction;
f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD
Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the
matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and
submitted the following:
a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the
whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as shown in the following:
a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the
disappearance and the action being taken by our office;
b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and
Detection Management, NHQ PNP;
c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is
continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate
solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the
disappearance, the CA directed Gen. Goltiao as the officer in command of the area of disappearance to form
TASK FORCE TAGITIS.18

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE
TAGITIS.19 The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting
"extraordinary efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be to
mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and
ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL
Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis
disappearance.22 The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of
Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and
an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:23
[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried
away more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his [personal] bank accounts
by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the IDB Scholarship
Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went
to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention
cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of
Tagitis, persistently denied any knowledge or complicity in any abduction.25 He further testified that prior to the
hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective
tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.26 In his submitted investigation
report dated January 16, 2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at
hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither
[sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt
has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi
Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the
scholar [sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said
program.
20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the
disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to
elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the
statement of Prof. Matli be true or there might be a professional jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on
[sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing
their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant
case. But rest assured, our office, in coordination with other law-enforcement agencies in the area, are continuously
and religiously conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting
extraordinary efforts in resolving Tagitis disappearance on the following grounds:28
(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL
GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been
standard operating procedure in kidnappings or disappearances that the first agenda was for the police to
secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country
and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been
informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of
the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28,
2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January
17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent

photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis claim that they
already had an "all points bulletin", since November 5, 2007, on the missing person, Engr. Morced Tagitis.
How could the police look for someone who disappeared if no clear photograph had been disseminated?
(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was
designated as Col. Ahirom Ajirims replacement in the latters official designated post. Yet, P/Supt KASIMs
subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt
KASIM who was the petitioners unofficial source of the military intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt
KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM
in response to this courts subpoena and COL. KASIM could have confirmed the military intelligence
information that bad elements of the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and
Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in
the military (whom she did not then identify) gave her information that allowed her to "specify" her allegations,
"particularly paragraph 15 of the petition."29 This friend also told her that her husband "[was] in good hands."30 The
respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch
Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis."31 The
respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim
(Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report"
that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because
"he is under custodial investigation" for being a liaison for "J.I. or Jemaah Islamiah."32
On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second wife, and they have
been married for thirteen years; Tagitis was divorced from his first wife.33 She last communicated with her husband
on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from
Zamboanga City.34
The respondent narrated that she learned of her husbands disappearance on October 30, 2007 when her
stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they
arranged to meet in Manila on October 31, 2007.35 The respondent explained that it took her a few days (or on
November 5, 2007) to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station,
since she had the impression that her husband could not communicate with her because his cellular phones battery
did not have enough power, and that he would call her when he had fully-charged his cellular phones battery.36
The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15
of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through
her boss.37 She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two
friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential report"
at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with
people belonging to a terrorist group and that he was under custodial investigation. She then told Col. Kasim that
her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding
him the need to give him his medication.38
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by the respondent,
detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and
Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted,
viz:40
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City
is 9:00 oclock in the morning; we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the
two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the
personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of
text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages
of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in
his condominium unit.

While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting
with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our
plane ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing
some points through phone calls. He assured me that my husband is alive and hes last looked [sic] in Talipapao,
Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some
of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times
begging to tell me the exact location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any
information of the whereabouts of my husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan
ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the office of Col.
Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact
any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to
do so.
The respondent also narrated her encounter with Col. Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy
Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on
October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of
Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for highranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp
Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he
assured me that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to
meet Col. Kasim for he has an urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim
read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of
which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the
two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown
to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that "Please dont quote my Name! Because this is a raw report." He assured me that my
husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of
my husband because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her
testimony regarding her efforts to locate her husband, in relation particularly with the information she received from
Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col.
Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and
that he showed them a series of text messages from Tagitis cellular phone, which showed that Tagitis and his
daughter would meet in Manila on October 30, 2007.43
She further narrated that sometime on November 24, 2007, she went with the respondent together with two other
companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent
asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands,
although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She
further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial
investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since
January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of

Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could not give a copy of the report
because it was a "raw report."45 She also related that the Col. Kasim did not tell them exactly where Tagitis was
being kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that
despite what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any accusation, that
Tagitis took away money entrusted to him.52 Prof. Matli confirmed, however, that that he had received an e-mail
report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the
office in locating the funds of IDB scholars deposited in Tagitis personal account.54
On cross-examination by the respondents counsel, Prof. Matli testified that his January 4, 2008 affidavit was
already prepared when PS Supt. Pingay asked him to sign it.55 Prof Matli clarified that although he read the affidavit
before signing it, he "was not so much aware of [its] contents."56
On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondents testimony,
particularly the allegation that he had stated that Tagitis was in the custody of either the military or the PNP.57 Col.
Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that
Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that "your husband is in good hands" and is "probably
taken cared of by his armed abductors;" and (3) that Tagitis was under custodial investigation by the military, the
PNP or the CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information
he provided to the respondent was merely a "raw report" sourced from "barangay intelligence" that still needed
confirmation and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his
informant, who was a "civilian asset," through a letter which he considered as "unofficial."61 Col. Kasim stressed that
the letter was only meant for his "consumption" and not for reading by others.62 He testified further that he
destroyed the letter right after he read it to the respondent and her companions because "it was not important to
him" and also because the information it contained had no importance in relation with the abduction of Tagitis.63 He
explained that he did not keep the letter because it did not contain any information regarding the whereabouts of
Tagitis and the person(s) responsible for his abduction.64
In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose
Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondents allegation that Tagitis was in the
custody of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm" of the PNP, and
that the CIDG "investigates and prosecutes all cases involving violations in the Revised Penal Code particularly
those considered as heinous crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel were
involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before
or after Tagitis reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu CIDT
had no capability to conduct any "operation," since they were only assigned to investigate matters and to monitor
the terrorism situation.68 He denied that his office conducted any surveillance on Tagitis prior to the latters
disappearance.69 Col. Pante further testified that his investigation of Tagitis disappearance was unsuccessful; the
investigation was "still facing a blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its decision71 confirming that the disappearance of Tagitis was an "enforced
disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.72 The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG)
to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion
that the CIDG was involved was based on the respondents testimony, corroborated by her companion, Mrs. Talbin.
The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis abduction
came from no less than the military an independent agency of government. The CA thus greatly relied on the "raw
report" from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The CA held that "raw
reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col. Kasims
subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the
abduction of Tagitis.
The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories painting
the disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program

ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the
police theory that Tagitis was "trying to escape from the clutches of his second wife," on the basis of the
respondents testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there
was "no issue" at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance,
since the respondent, the police and the military noted that there was no acknowledgement of Tagitis abduction or
demand for payment of ransom the usual modus operandi of these terrorist groups.
Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed
the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao
and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to
protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA.
At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander
Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its
Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly dispute the sufficiency in
form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent
took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated;
the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden
of proving the allegations of the petition by substantial evidence.74
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondents Amparo petition, the petitioners contend
that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the
respondent failed to:
1) allege any act or omission the petitioners committed in violation of Tagitis rights to life, liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance,
and the respondents source of information;
3) allege that the abduction was committed at the petitioners instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their duties in the
investigation of Tagitis disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions
the petitioners cite):75
(c) The right to life, liberty and security of the aggrieved party violated or threatened with violation by an
unlawful act or omission of the respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal circumstances, and addresses of
the investigating authority or individuals, as well as the manner and conduct of the investigation, together
with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts of the aggrieved party

and the identity of the person responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened
or actual violation of a victims rights. As in any other initiatory pleading, the pleader must of course state the
ultimate facts constituting the cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who
actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the
level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make
this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in
reading the petition should be to determine whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the victims rights to life, liberty and security
through State or private party action. The petition should likewise be read in its totality, rather than in terms of its
isolated component parts, to determine if the required elements namely, of the disappearance, the State or private
action, and the actual or threatened violations of the rights to life, liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis
suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be found despite
efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that
according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how
Tagitis rights to life, liberty and security were violated when he was "forcibly taken and boarded on a motor vehicle
by a couple of burly men believed to be police intelligence operatives," and then taken "into custody by the
respondents police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City,
x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist
groups."77
These allegations, in our view, properly pleaded ultimate facts within the pleaders knowledge about Tagitis
disappearance, the participation by agents of the State in this disappearance, the failure of the State to release
Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty.
Thus, the petition cannot be faulted for any failure in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section
5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution
of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these
can be used as the affiants direct testimony.78 This requirement, however, should not be read as an absolute one
that necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has
substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the
failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally
testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point, the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been
made, specifying the manner and results of the investigation. Effectively, this requirement seeks to establish at the
earliest opportunity the level of diligence the public authorities undertook in relation with the reported
disappearance.79
We reject the petitioners argument that the respondents petition did not comply with the Section 5(d) requirements
of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately
reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he
indeed had disappeared. The police, however, gave them the "ready answer" that Tagitis could have been abducted
by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of
her petition that she filed a "complaint" with the PNP Police Station in Cotobato and in Jolo, but she was told of "an
intriguing tale" by the police that her husband was having "a good time with another woman." The disappearance
was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondents
personal inquiries that yielded the factual bases for her petition.80
These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that
investigations should have followed. That the petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to

investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the
investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of
Section 5(d), given the respondents frustrations in securing an investigation with meaningful results. Under these
circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are
sufficiently complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not supported by sufficient
allegations to constitute a proper cause of action as a means to "fish" for evidence.81 The petitioners contend that
the respondents petition did not specify what "legally available efforts were taken by the respondent," and that there
was an "undue haste" in the filing of the petition when, instead of cooperating with authorities, the respondent
immediately invoked the Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the actions and
recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person
responsible for the threat, act or omission." The following allegations of the respondents petition duly outlined the
actions she had taken and the frustrations she encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while
out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded
the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported
the matter to the local police agency;
11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately
given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups
known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the
[respondent](wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the
OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos
branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help
them find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police
intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest
attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find her husband, but [the respondents] request and pleadings failed
to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again
in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her
to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the
circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the release of
subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and the like
which are in total violation of the subjects human and constitutional rights, except the issuance of a WRIT OF
AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ of Amparo is sufficient in form and
substance and that the Court of Appeals had every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an
enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced
disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very
helpful.
The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitlers Nact und
Nebel Erlass or Night and Fog Decree of December 7, 1941.82 The Third Reichs Night and Fog Program, a State
policy, was directed at persons in occupied territories "endangering German security"; they were transported
secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect,
the policy prohibited government officials from providing information about the fate of these targeted persons.83
In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when
individuals, numbering anywhere from 6,000 to 24,000, were reported to have "disappeared" during the military
regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international
concern when the world noted its widespread and systematic use by State security forces in that continent under
Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the practice saw political
activists secretly arrested, tortured, and killed as part of governments counter-insurgency campaigns. As this form
of political brutality became routine elsewhere in the continent, the Latin American media standardized the term
"disappearance" to describe the phenomenon. The victims of enforced disappearances were called the
"desaparecidos,"86 which literally means the "disappeared ones."87 In general, there are three different kinds of
"disappearance" cases:
1) those of people arrested without witnesses or without positive identification of the arresting agents and are
never found again;
2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation
for weeks or months while their families are unable to discover their whereabouts and the military authorities
deny having them in custody until they eventually reappear in one detention center or another; and
3) those of victims of "salvaging" who have disappeared until their lifeless bodies are later discovered.88
In the Philippines, enforced disappearances generally fall within the first two categories,89 and 855 cases were
recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced
alive and 127 were found dead. During former President Corazon C. Aquinos term, 820 people were reported to
have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced
alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V.
Ramos term when only 87 cases were reported, while the three-year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008,
the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria
M. Arroyos administration. The Commission on Human Rights records show a total of 636 verified cases of
enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were
found dead, and 76 still have undetermined status.90 Currently, the United Nations Working Group on Enforced or
Involuntary Disappearance91 reports 619 outstanding cases of enforced or involuntary disappearances covering the
period December 1, 2007 to November 30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or

threats thereof."93 We note that although the writ specifically covers "enforced disappearances," this concept is
neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of
Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition
of the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for]
extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules,
definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial killings and enforced
disappearances so initially also we have to [come up with] the nature of these extrajudicial killings and enforced
disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the
jurisdiction of the courts. So well have to agree among ourselves about the nature of killings and disappearances
for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept
of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions
not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for
instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs
or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and
enforced disappearances that will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several bills filed in the House of Representatives96 and in the
Senate97 on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual
definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within
its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude
into the ongoing legislative efforts.98
As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes
penalized separately from the component criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and special laws.99 The simple reason is
that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the
corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has
the power to enact under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced
disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to
promulgate "rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts,"100 since extrajudicial killings and enforced disappearances, by their nature and purpose,
constitute State or private party violation of the constitutional rights of individuals to life, liberty and security.
Although the Courts power is strictly procedural and as such does not diminish, increase or modify substantive
rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the
procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a difference even if only procedurally in
a situation when the very same investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal
culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before
our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced
disappearance has taken place and who is responsible or accountable for this disappearance, and to define and
impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation
are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the
individual situations require. The second is to address the disappearance, so that the life of the victim is preserved
and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are
continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully
addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty parties.
Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of
human rights.101 It does not only violate the right to life, liberty and security of the desaparecido; it affects their
families as well through the denial of their right to information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be "a double form of torture," with "doubly paralyzing
impact for the victims," as they "are kept ignorant of their own fates, while family members are deprived of knowing
the whereabouts of their detained loved ones" and suffer as well the serious economic hardship and poverty that in
most cases follow the disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of "Disappeared Persons" in December 1978 under Resolution
33/173. The Resolution expressed the General Assemblys deep concern arising from "reports from various parts of
the world relating to enforced or involuntary disappearances," and requested the "UN Commission on Human Rights
to consider the issue of enforced disappearances with a view to making appropriate recommendations."103
In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global
phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).104 This Declaration, for the first time, provided in its third preambular clause a working
description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense
that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with
the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate
or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places
such persons outside the protection of the law. [Emphasis supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention
for the Protection of All Persons from Enforced Disappearance (Convention).105 The Convention was opened for
signature in Paris, France on February 6, 2007.106 Article 2 of the Convention defined enforced disappearance as
follows:
For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction
or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty
or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there is a right not to be subject to
enforced disappearance107 and that this right is non-derogable.108 It provides that no one shall be subjected to
enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public
emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate
penalties under their criminal law.109 It also recognizes the right of relatives of the disappeared persons and of the
society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and
results of the investigation.110 Lastly, it classifies enforced disappearance as a continuing offense, such that statutes
of limitations shall not apply until the fate and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to
enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a
stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a
violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the
Constitution to protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by
the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines
pledged to "promote universal respect for, and observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion."112 Although no universal agreement has been reached on
the precise extent of the "human rights and fundamental freedoms" guaranteed to all by the Charter,113 it was the
UN itself that issued the Declaration on enforced disappearance, and this Declaration states:114

Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the
Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments
in this field. [Emphasis supplied]
As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on
enforced disappearance cannot but have its effects on the country, given our own adherence to "generally accepted
principles of international law as part of the law of the land."115
In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,116 we held that:
Under the 1987 Constitution, international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an international law be transformed into
a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies
when, by mere constitutional declaration, international law is deemed to have the force of domestic law.
[Emphasis supplied]
We characterized "generally accepted principles of international law" as norms of general or customary international
law that are binding on all states. We held further:117
[G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in
international law sees those customary rules accepted as binding result from the combination [of] two elements: the
established, widespread, and consistent practice on the part of States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original]
The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the
International Court of Justice, which provides that the Court shall apply "international custom, as evidence of a
general practice accepted as law."118 The material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and other international instruments, a pattern of
treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN
General Assembly.119 Sometimes referred to as "evidence" of international law,120 these sources identify the
substance and content of the obligations of States and are indicative of the "State practice" and "opinio juris"
requirements of international law.121 We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General
Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.122 State
parties undertook under this Convention "not to practice, permit, or tolerate the forced disappearance of persons,
even in states of emergency or suspension of individual guarantees."123 One of the key provisions includes the
States obligation to enact the crime of forced disappearance in their respective national criminal laws and to
establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a
national of that State, and "when the alleged criminal is within its territory and it does not proceed to extradite him,"
which can be interpreted as establishing universal jurisdiction among the parties to the Inter-American
Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in
accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be
criminal.125
1avvphi1

Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the protection
against enforced disappearance. The European Court of Human Rights (ECHR), however, has applied the
Convention in a way that provides ample protection for the underlying rights affected by enforced disappearance
through the Conventions Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to
liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the protection afforded by the European Convention is Kurt v. Turkey,126
where the ECHR found a violation of the right to liberty and security of the disappeared person when the applicants
son disappeared after being taken into custody by Turkish forces in the Kurdish village of Agilli in November 1993. It
further found the applicant (the disappeared persons mother) to be a victim of a violation of Article 3, as a result of
the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR also saw the
lack of any meaningful investigation by the State as a violation of Article 13.127
Third, in the United States, the status of the prohibition on enforced disappearance as part of customary
international law is recognized in the most recent edition of Restatement of the Law: The Third,128 which provides

that "[a] State violates international law if, as a matter of State policy, it practices, encourages, or condones (3) the
murder or causing the disappearance of individuals."129 We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United States Court of Appeals for the
Second Circuit Court held in Filartiga v. Pena-Irala130 that the prohibition on torture had attained the status of
customary international law. The court further elaborated on the significance of UN declarations, as follows:
These U.N. declarations are significant because they specify with great precision the obligations of member nations
under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights
they promised in the Charter to promote." Moreover, a U.N. Declaration is, according to one authoritative definition,
"a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are
being enunciated." Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits
into the dichotomy of binding treaty against non-binding pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the
expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down
rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has
become, in toto, a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention on Civil and
Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced
disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime
against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC) also covers
enforced disappearances insofar as they are defined as crimes against humanity,132 i.e., crimes "committed as part
of a widespread or systematic attack against any civilian population, with knowledge of the attack." While more than
100 countries have ratified the Rome Statute,133 the Philippines is still merely a signatory and has not yet ratified it.
We note that Article 7(1) of the Rome Statute has been incorporated in the statutes of other international and hybrid
tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the
Extraordinary Chambers in the Courts of Cambodia.134 In addition, the implementing legislation of State Parties to
the Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced
disappearance.135
While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the
specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the
above recital shows that enforced disappearance as a State practice has been repudiated by the international
community, so that the ban on it is now a generally accepted principle of international law, which we should consider
a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the
international conventions that bind us.
The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the
International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course of a
disappearance:136
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;

11) the right to health; and

12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an
effective remedy, notwithstanding that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent
judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy under
Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States Parties must
ensure that individuals also have accessible and effective remedies to vindicate those rights The Committee
attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for
addressing claims of rights violations under domestic law Administrative mechanisms are particularly required to
give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively
through independent and impartial bodies. A failure by a State Party to investigate allegations of violations could in
and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential
element of the right to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to investigate as
well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:138
18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties
must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice
perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These
obligations arise notably in respect of those violations recognized as criminal under either domestic or international
law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing
(article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for
these violations, a matter of sustained concern by the Committee, may well be an important contributing element in
the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian
population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]
In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to security of persons is a
guarantee of the protection of ones right by the government, held that:
The right to security of person in this third sense is a corollary of the policy that the State "guarantees full respect for
human rights" under Article II, Section 11 of the 1987 Constitution. As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life, liberty and security of person is rendered ineffective if
government does not afford protection to these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus to extend protection to
victims of extralegal killings or enforced disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be assumed by the State as its own legal duty, not as a step
taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to security" not only as a
prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules
of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual
from arbitrariness... Having assumed control over that individual, it is incumbent on the authorities to account for his
or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim
that a person has been taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made effective
on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of "enforced disappearance," the materials cited above,
among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court
can provide remedies and protect the constitutional rights to life, liberty and security that underlie every enforced
disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the
petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the
unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting
that the implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself the party whose involvement is alleged investigates
enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally
threefold.
First, there may be a deliberate concealment of the identities of the direct perpetrators.141 Experts note that
abductors are well organized, armed and usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under some form of governmental
authority. In many countries the units that plan, implement and execute the program are generally specialized,
highly-secret bodies within the armed or security forces. They are generally directed through a separate, clandestine
chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police
forces. These authorities take their victims to secret detention centers where they subject them to interrogation and
torture without fear of judicial or other controls.142
In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out
publicly or to testify on the disappearance out of fear for their own lives.143 We have had occasion to note this
difficulty in Secretary of Defense v. Manalo144 when we acknowledged that "where powerful military officers are
implicated, the hesitation of witnesses to surface and testify against them comes as no surprise."
Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece
of evidence in an enforced disappearance i.e., the corpus delicti or the victims body is usually concealed to
effectively thwart the start of any investigation or the progress of one that may have begun.145 The problem for the
victims family is the States virtual monopoly of access to pertinent evidence. The Inter-American Court of Human
Rights (IACHR) observed in the landmark case of Velasquez Rodriguez146 that inherent to the practice of enforced
disappearance is the deliberate use of the States power to destroy the pertinent evidence. The IACHR described
the concealment as a clear attempt by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced
disappearance ever occurred.148 "Deniability" is central to the policy of enforced disappearances, as the absence of
any proven disappearance makes it easier to escape the application of legal standards ensuring the victims human
rights.149 Experience shows that government officials typically respond to requests for information about
desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the
country, or that their names have merely been invented.150
These considerations are alive in our minds, as these are the difficulties we confront, in one form or another, in our
consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden
of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge
may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations
and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by
substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules
and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary diligence as required by
applicable laws, rules and regulations was observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that official duty has been regularly
performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by substantial evidence, the court shall
grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege shall be
denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of substantial evidence as the required level of proof
(in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings)
reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding,
albeit judicially conducted, in addressing Amparo situations. The standard of diligence required the duty of public
officials and employees to observe extraordinary diligence point, too, to the extraordinary measures expected in
the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form
requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence.
Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on
the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took
place under circumstances showing a violation of the victims constitutional rights to life, liberty or security, and the
failure on the part of the investigating authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the Court its first opportunity to define
the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang
Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious purpose of this and similar provisions is to
free administrative boards from the compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the administrative order. [citations omitted] But
this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a
basis in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the Courts first petition for a Writ of Amparo, we recognized that
the full and exhaustive proceedings that the substantial evidence standard regularly requires do not need to apply
due to the summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a summary proceeding that requires
only substantial evidence to make the appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of evidence,
or administrative responsibility requiring substantial evidence that will require full and exhaustive proceedings.
[Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties presented
by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must frontally meet if
the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties compel the Court to
adopt standards appropriate and responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the IACHR faced with a lack of direct evidence that the
government of Honduras was involved in Velasquez Rodriguez disappearance adopted a relaxed and informal
evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it
can be proven that the government carries out a general practice of enforced disappearances and the specific case
can be linked to that practice.154 The IACHR took note of the realistic fact that enforced disappearances could be
proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove
that an individual had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct evidence, whether testimonial or
documentary, is not the only type of evidence that may be legitimately considered in reaching a decision.
Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions
consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this
type of repression is characterized by an attempt to suppress all information about the kidnapping or the
whereabouts and fate of the victim. [Emphasis supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried out by agents who acted under
cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida
Velsquez, the victims sister, who described Manfredos kidnapping on the basis of conversations she had with
witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a
former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting
under orders of the Chief of the Armed Forces.155 The IACHR likewise considered the hearsay testimony of a
second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a
third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.156
Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced
disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive
to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of
evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot
be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil
cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence
are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to
consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the
admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the
relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced evidence. Thus,
even hearsay evidence can be admitted if it satisfies this basic minimum test.
We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine
legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness157 is expressly
recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child
describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain
prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined
by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of
the child witness.158 These requisites for admission find their counterpart in the present case under the abovedescribed conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in
extrajudicial killings and enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced disappearance within the meaning of this term
under the UN Declaration we have cited?

The Convention defines enforced disappearance as "the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support
or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of
the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."159
Under this definition, the elements that constitute enforced disappearance are essentially fourfold:160
(a) arrest, detention, abduction or any form of deprivation of liberty;
(b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or
acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared
person; and
(d) placement of the disappeared person outside the protection of the law. [Emphasis supplied]
We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows
that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never
seen nor heard of again. The undisputed conclusion, however, from all concerned the petitioner, Tagitis
colleagues and even the police authorities is that Tagistis disappeared under mysterious circumstances and was
never seen again. The respondent injected the causal element in her petition and testimony, as we shall discuss
below.
We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis.
If at all, only the respondents allegation that Tagistis was under CIDG Zamboanga custody stands on record, but it
is not supported by any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to two sources of information as her bases for her allegation that
Tagistis had been placed under government custody (in contrast with CIDG Zamboanga custody). The first was an
unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a high position in the military and
who allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the respondent
herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any information that Tagitis was
in government custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied giving her
any information about the disappearance.
The more specific and productive source of information was Col. Kasim, whom the respondent, together with her
witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the respondents
testimony:
Q: Were you able to speak to other military officials regarding the whereabouts of your husband particularly those in
charge of any records or investigation?
A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband is being
abducted [sic] because he is under custodial investigation because he is allegedly "parang liason ng J.I.", sir.
Q: What is J.I.?
A: Jemaah Islamiah, sir.
Q: Was there any information that was read to you during one of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said those reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-examination:
Q: You also mentioned that you went to Camp Katitipan in Davao City?

A: Yes, maam.
Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation?
A: Yes, maam.
Q: And you mentioned that he showed you a report?
A: Yes, maam.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a military
report, maam.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends, maam.
Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, maam.162
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista na mga
tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him "Colonel, my husband is sick.
He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot,
maam."163
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in Zamboanga, did
you go to CIDG Zamboanga to verify that information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because I know
that they would deny it, maam.164
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her husband was
abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with you when
you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
Q: Were you able to talk to him?

A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim during that time?
A: The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the location of
Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He is with the military,
but he is not certain whether he is with the AFP or PNP. He has this serious case. He was charged of terrorism
because he was under surveillance from January 2007 up to the time that he was abducted. He told us that he was
under custodial investigation. As Ive said earlier, he was seen under surveillance from January. He was seen talking
to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He was seen
carrying boxes of medicines. Then we asked him how long will he be in custodial investigation. He said until we can
get some information. But he also told us that he cannot give us that report because it was a raw report. It was not
official, sir.
Q: You said that he was reading a report, was that report in document form, in a piece of paper or was it in the
computer or what?
A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was computerized but Im certain that it
was typewritten. Im not sure if it used computer, fax or what, sir.
Q: When he was reading it to you, was he reading it line by line or he was reading in a summary form?
A: Sometimes he was glancing to the report and talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw information that he was reading to us [sic]
after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the respondent and her friends, and that he provided them information
based on the input of an unnamed asset. He simply claimed in his testimony that the "informal letter" he received
from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed that the
information he provided the respondent was merely a "raw report" from "barangay intelligence" that still needed
confirmation and "follow up" as to its veracity.167
To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the petitioners pointed out. The
respondent mistakenly characterized Col. Kasim as a "military officer" who told her that "her husband is being
abducted because he is under custodial investigation because he is allegedly parang liason ng J.I." The petitioners
also noted that "Mrs. Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the
military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high
ranking police officer who would certainly know that the PNP is not part of the military."
Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners never
really steadfastly disputed or presented evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details that should not affect
the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material points.168 We note, for
example, that these witnesses are lay people in so far as military and police matters are concerned, and confusion
between the police and the military is not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication169and only tend to strengthen their probative value, in contrast to testimonies
from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of a well thought of and prefabricated story.170
Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we hold it
duly established that Col. Kasim informed the respondent and her friends, based on the informants letter, that

Tagitis, reputedly a liaison for the JI and who had been under surveillance since January 2007, was "in good hands"
and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain
"Santos" of Bulacan, a "Balik Islam" charged with terrorism. The respondents and Mrs. Talbins testimonies cannot
simply be defeated by Col. Kasims plain denial and his claim that he had destroyed his informants letter, the critical
piece of evidence that supports or negates the parties conflicting claims. Col. Kasims admitted destruction of this
letter effectively, a suppression of this evidence raises the presumption that the letter, if produced, would be
proof of what the respondent claimed.171 For brevity, we shall call the evidence of what Col. Kasim reported to the
respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct evidence, as
proof that the disappearance of Tagitis was due to action with government participation, knowledge or consent and
that he was held for custodial investigation. We note in this regard that Col. Kasim was never quoted to have said
that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies government
intervention through the use of the term "custodial investigation," and does not at all point to CIDG Zamboanga as
Tagitis custodian.
Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., evidence whose probative value
is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but
on the knowledge of some other person not on the witness stand (the informant).172
To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to
acknowledge as the petitioners effectively suggest that in the absence of any direct evidence, we should simply
dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the
Amparo Rule despite its terms is ineffective, as it cannot allow for the special evidentiary difficulties that are
unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances. The
Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for
constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and
international experiences in extrajudicial killings and enforced disappearances, as the situation may require.
Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.
1avvphi1

To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least
take a close look at the available evidence to determine the correct import of every piece of evidence even of
those usually considered inadmissible under the general rules of evidence taking into account the surrounding
circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present
case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him with an air of mystery. He was reputedly a
consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga
and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a
return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of his
overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have
taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking
away money held in trust, although he confirmed that the IDB was seeking assistance in locating funds of IDB
scholars deposited in Tagitis personal account. Other than these pieces of evidence, no other information exists in
the records relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition recited
that he was taken away by "burly men believed to be police intelligence operatives," no evidence whatsoever was
introduced to support this allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of
October 30, 2007 the day he arrived in Jolo and was never seen again.
The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the
case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too,
that colors a simple missing person report into an enforced disappearance case, as it injects the element of
participation by agents of the State and thus brings into question how the State reacted to the disappearance.
Denials on the part of the police authorities, and frustration on the part of the respondent, characterize the attempts
to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf
or other groups fighting the government. No evidence was ever offered on whether there was active Jolo police
investigation and how and why the Jolo police arrived at this conclusion. The respondents own inquiry in Jolo
yielded the answer that he was not missing but was with another woman somewhere. Again, no evidence exists that
this explanation was arrived at based on an investigation. As already related above, the inquiry with Col. Ancanan in

Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col.
Kasim that yielded positive results. Col. Kasims story, however, confirmed only the fact of his custodial investigation
(and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasims story is that the abduction came after Tagitis was seen talking with Omar Patik
and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was
being held at Talipapao, Sulu. None of the police agencies participating in the investigation ever pursued these
leads. Notably, Task Force Tagitis to which this information was relayed did not appear to have lifted a finger to
pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP Chief Gen.
Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the Regional Chief of
the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the disappearance. The
CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief, constituted the
exhaustion "of all possible efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching "all divisions and departments [of the CIDG] for a person named Engr. Morced N.
Tagitis . . . and after a diligent and thorough research, records show that no such person is being detained in the
CIDG or any of its department or divisions." PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM
Regional Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they essentially
reported the results of their directives to their units to search for Tagitis.
The extent to which the police authorities acted was fully tested when the CA constituted Task Force Tagitis, with
specific directives on what to do. The negative results reflected in the Returns on the writ were again replicated
during the three hearings the CA scheduled. Aside from the previously mentioned "retraction" that Prof. Matli made
to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony
that the CIDG consistently denied any knowledge or complicity in any abduction and said that there was no basis to
conclude that the CIDG or any police unit had anything to do with the disappearance of Tagitis; he likewise
considered it premature to conclude that Tagitis simply ran away with the money in his custody. As already noted
above, the Task Force notably did not pursue any investigation about the personal circumstances of Tagitis, his
background in relation to the IDB and the background and activities of this Bank itself, and the reported sighting of
Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to
look into the alleged IDB funds that Tagitis held in trust, or to tap any of the "assets" who are indispensable in
investigations of this nature. These omissions and negative results were aggravated by the CA findings that it was
only as late as January 28, 2008 or three months after the disappearance that the police authorities requested for
clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not served, despite the fact
that he was designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was not then questioned.
No investigation even an internal one appeared to have been made to inquire into the identity of Col. Kasims
"asset" and what he indeed wrote.
We glean from all these pieces of evidence and developments a consistency in the governments denial of any
complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at
Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was
under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these
developments is the governments dismissive approach to the disappearance, starting from the initial response by
the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she
herself reported and inquired about her husbands disappearance, and even at Task Force Tagitis itself.
As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities were
looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various
departments and divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation because it
was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too,
would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains
any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police
officials indicating the personnel and units they directed to investigate can never constitute exhaustive and
meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis.
Indisputably, the police authorities from the very beginning failed to come up to the extraordinary diligence that the
Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and
the haphazard investigations cannot but point to this conclusion. For why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what they already knew of the

disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of
Tagitis be a feather in the governments cap under the circumstances of the disappearance? From this perspective,
the evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,173
the evidence at hand and the developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded government denials and haphazard
handling. The disappearance as well effectively placed Tagitis outside the protection of the law a situation that will
subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent in international enforced
disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those of
Timurtas v. Turkey,174 a case decided by ECHR. The European tribunal in that case acted on the basis of the
photocopy of a "post-operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later
detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim
against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and the
rights to liberty and security of a person (Article 5). The applicant contended that on August 14, 1993, gendarmes
apprehended his son, Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi region. The
petition was filed in southeast Turkey nearly six and one half years after the apprehension. According to the father,
gendarmes first detained Abdulvahap and then transferred him to another detainment facility. Although there was no
eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence
corroborating his version of events, including a photocopy of a post-operation report signed by the commander of
gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a
subsequent interrogation during detention where he was accused of being a leader of the PKK in the Silopi region.
On this basis, Turkey was held responsible for Abdulvahaps enforced disappearance.
Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo remedy this
Court has established, as applied to the unique facts and developments of this case we believe and so hold that
the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations
together with Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the "PNP
Law,"175 specifies the PNP as the governmental office with the mandate "to investigate and prevent crimes, effect
the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG, as Col.
Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative arm" of the PNP and is mandated
to "investigate and prosecute all cases involving violations of the Revised Penal Code, particularly those considered
as heinous crimes."176 Under the PNP organizational structure, the PNP-CIDG is tasked to investigate all major
crimes involving violations of the Revised Penal Code and operates against organized crime groups, unless the
President assigns the case exclusively to the National Bureau of Investigation (NBI).177 No indication exists in this
case showing that the President ever directly intervened by assigning the investigation of Tagitis disappearance
exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their
duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy, we refer
this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the CA may deem appropriate to
conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of action
for further investigation, periodically reporting the detailed results of its investigation to the CA for its consideration
and action. On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision and as further CA hearings may indicate; the
petitioners submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly report
containing its actions and recommendations, copy furnished the petitioners and the respondent, with the first report
due at the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall have
one (1) full year to undertake their investigation. The CA shall submit its full report for the consideration of this Court
at the end of the 4th quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for review on certiorari for lack of merit, and
AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms:
a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered
by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility, declaring the government
(through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced

disappearance of Engineer Morced N. Tagitis;

c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the
disclosure of material facts known to the government and to their offices regarding the disappearance of
Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with
the obligation to show investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the
obligation to disclose information known to him and to his "assets" in relation with the enforced disappearance
of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of
the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNPCIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically
reporting their results to the Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy
furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report
due at the end of the first quarter counted from the finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of
Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted
from the finality of this Decision;
These directives and those of the Court of Appeals made pursuant to this Decision shall be given to, and shall be
directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court when the initiatives and efforts at
disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and
the circumstances of this case demand. Given the unique nature of Amparo cases and their varying attendant
circumstances, these directives particularly, the referral back to and monitoring by the CA are specific to this
case and are not standard remedies that can be applied to every Amparo situation.
The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine
Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L. MAZA,
Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as Secretary
of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the Non-Surrender
Agreement concluded by and between the Republic of the Philippines (RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of
society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to
this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute3 establishing the International Criminal Court
(ICC) with "the power to exercise its jurisdiction over persons for the most serious crimes of international concern x
x x and shall be complementary to the national criminal jurisdictions."4 The serious crimes adverted to cover those
considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.5
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome Statute which, by
its terms, is "subject to ratification, acceptance or approval" by the signatory states.6 As of the filing of the instant
petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.
RP-US Non-Surrender Agreement
On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the Department of
Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement, hereinafter)
between the USA and the RP.
Via Exchange of Notes No. BFO-028-037 dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP, represented
by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US Embassy Note
adverted to and put in effect the Agreement with the US government. In esse, the Agreement aims to protect what it
refers to and defines as "persons" of the RP and US from frivolous and harassment suits that might be brought
against them in international tribunals.8 It is reflective of the increasing pace of the strategic security and defense
partnership between the two countries. As of May 2, 2003, similar bilateral agreements have been effected by and
between the US and 33 other countries.9

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, "persons" are current or former Government officials, employees
(including contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the other shall not, absent the express consent of the first
Party,
(a) be surrendered or transferred by any means to any international tribunal for any purpose, unless
such tribunal has been established by the UN Security Council, or
(b) be surrendered or transferred by any means to any other entity or third country, or expelled to a
third country, for the purpose of surrender to or transfer to any international tribunal, unless such
tribunal has been established by the UN Security Council.
3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines to a third country,
the [US] will not agree to the surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of
the Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to a third country, the
[GRP] will not agree to the surrender or transfer of that person by the third country to any international
tribunal, unless such tribunal has been established by the UN Security Council, absent the express consent of
the Government of the [US].
5. This Agreement shall remain in force until one year after the date on which one party notifies the other of
its intent to terminate the Agreement. The provisions of this Agreement shall continue to apply with respect to
any act occurring, or any allegation arising, before the effective date of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender agreement,
Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic notes constituted
a legally binding agreement under international law; and that, under US law, the said agreement did not require the
advice and consent of the US Senate.10
In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and ratifying the
Agreement and prays that it be struck down as unconstitutional, or at least declared as without force and effect.
For their part, respondents question petitioners standing to maintain a suit and counter that the Agreement, being in
the nature of an executive agreement, does not require Senate concurrence for its efficacy. And for reasons detailed
in their comment, respondents assert the constitutionality of the Agreement.
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING THE RP-US
NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE [ICC] ALTHOUGH
THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their discretion when
they capriciously abandoned, waived and relinquished our only legitimate recourse through the Rome
Statute of the [ICC] to prosecute and try "persons" as defined in the x x x Agreement, x x x or literally
any conduit of American interests, who have committed crimes of genocide, crimes against humanity,
war crimes and the crime of aggression, thereby abdicating Philippine Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the [RP]
President and the [DFA] Secretary x x x are obliged by the principle of good faith to refrain from doing
all acts which would substantially impair the value of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and purpose of the Rome
Statute of the International Criminal Court and contravenes the obligation of good faith inherent in the
signature of the President affixed on the Rome Statute of the International Criminal Court, and if so
whether the x x x Agreement is void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave abuse of

discretion amounting to lack or excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE WITH UNIVERSALLY
RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted validly, which
resolves itself into the question of whether or not respondents gravely abused their discretion in concluding it; and
second, whether or not the Agreement, which has not been submitted to the Senate for concurrence, contravenes
and undermines the Rome Statute and other treaties. But because respondents expectedly raised it, we shall first
tackle the issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity of the
Agreement carries with it constitutional significance and is of paramount importance that justifies its standing. Cited
in this regard is what is usually referred to as the emergency powers cases,12 in which ordinary citizens and
taxpayers were accorded the personality to question the constitutionality of executive issuances.
Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically, it is "a partys
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result"14 of the
act being challenged, and "calls for more than just a generalized grievance."15 The term "interest" refers to material
interest, as distinguished from one that is merely incidental.16 The rationale for requiring a party who challenges the
validity of a law or international agreement to allege such a personal stake in the outcome of the controversy is "to
assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases, suits are
not brought by parties who have been personally injured by the operation of a law or any other government act, but
by concerned citizens, taxpayers, or voters who actually sue in the public interest.18 Consequently, in a catena of
cases,19 this Court has invariably adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens raising
issues of transcendental importance, both for the Republic and the citizenry as a whole.
When suing as a citizen to question the validity of a law or other government action, a petitioner needs to meet
certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on this requirement, thus:
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. In fine, when the proceeding involves the assertion of a
public right, the mere fact that he is a citizen satisfies the requirement of personal interest.21
In the case at bar, petitioners representatives have complied with the qualifying conditions or specific requirements
exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is direct and
personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e., to ascertain
that the Agreement did not go against established national policies, practices, and obligations bearing on the States
obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the Court to brush
aside the procedural barrier posed by the traditional requirement of locus standi, as we have done in a long line of
earlier cases, notably in the old but oft-cited emergency powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases
of transcendental importance, we wrote again in Bayan v. Zamora,24 "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."
Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before
it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,"25 we
cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is
seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the
right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore
the propriety of the Agreement pending the ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N BFO-028-03
cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines, practices, and
jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2, Article II of the
Constitution, wherein the Philippines adopts the generally accepted principles of international law and international
jurisprudence as part of the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.26 An exchange of notes falls "into the category of inter-governmental agreements,"27 which is an
internationally accepted form of international agreement. The United Nations Treaty Collections (Treaty Reference
Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities with the private law contract.
The agreement consists of the exchange of two documents, each of the parties being in the possession of the one
signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.28
In another perspective, the terms "exchange of notes" and "executive agreements" have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes binding through
executive action.29 On the other hand, executive agreements concluded by the President "sometimes take the form
of exchange of notes and at other times that of more formal documents denominated agreements or protocols."30
As former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of
Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and agreements whether
denominated executive agreements or exchange of notes or otherwise begin, may sometimes be difficult of ready
ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender Agreement
itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized mode of
concluding a legally binding international written contract among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international agreement concluded
between states in written form and governed by international law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation."32 International agreements may be in the form
of (1) treaties that require legislative concurrence after executive ratification; or (2) executive agreements that are
similar to treaties, except that they do not require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.33
Under international law, there is no difference between treaties and executive agreements in terms of their binding
effects on the contracting states concerned,34 as long as the negotiating functionaries have remained within their
powers.35 Neither, on the domestic sphere, can one be held valid if it violates the Constitution.36 Authorities are,

however, agreed that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity" than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty having behind it the authority of the
President, the Senate, and the people;38 a ratified treaty, unlike an executive agreement, takes precedence over
any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature of a treaty;
hence, it must be duly concurred in by the Senate. Petitioner takes a cue from Commissioner of Customs v. Eastern
Sea Trading, in which the Court reproduced the following observations made by US legal scholars: "[I]nternational
agreements involving political issues or changes of national policy and those involving international arrangements of
a permanent character usually take the form of treaties [while] those embodying adjustments of detail carrying out
well established national policies and traditions and those involving arrangements of a more or less temporary
nature take the form of executive agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the subjectcategories that are enumerated in the Eastern Sea Trading case, and that may be covered by an executive
agreement, such as commercial/consular relations, most-favored nation rights, patent rights, trademark and
copyright protection, postal and navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and Merchant,41 holding
that an executive agreement through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea
Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of international relations. The primary consideration in the choice
of the form of agreement is the parties intent and desire to craft an international agreement in the form they so wish
to further their respective interests. Verily, the matter of form takes a back seat when it comes to effectiveness and
binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international
agreement each labor under the pacta sunt servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading.
Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to
include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive
agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety,
among others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on
the matter of which the international agreement format would be convenient to serve its best interest. As Francis
Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive agreements as such concluded
from time to time. Hundreds of executive agreements, other than those entered into under the trade-agreement act,
have been negotiated with foreign governments. x x x They cover such subjects as the inspection of vessels,
navigation dues, income tax on shipping profits, the admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treaty-implementing
executive agreement,45 which necessarily would cover the same matters subject of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation and matters contemplated in
Sec. 25, Art. XVIII of the Constitution46when a treaty is required, the Constitution does not classify any subject,
like that involving political issues, to be in the form of, and ratified as, a treaty. What the Constitution merely
prescribes is that treaties need the concurrence of the Senate by a vote defined therein to complete the ratification
process.
Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to different factual milieus. There,
the Court held that an executive agreement cannot be used to amend a duly ratified and existing treaty, i.e., the
Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate for its ratification
may not be used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the Executive
and the Senate. The presence of a treaty, purportedly being subject to amendment by an executive agreement,
does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised, referring to the
validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the members of the
Senate. The Court has, in Eastern Sea Trading,48 as reiterated in Bayan,49 given recognition to the obligatory effect
of executive agreements without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history, we have entered
executive agreements covering such subjects as commercial and consular relations, most favored-nation rights,
patent rights, trademark and copyright protection, postal and navigation arrangements and the settlement of claims.
The validity of these has never been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is null and
void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute.
Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or groups of
individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-surrender
agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that
state parties with non-surrender agreements are prevented from meeting their obligations under the Rome Statute,
thereby constituting a breach of Arts. 27,50 86,51 8952 and 9053 thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those responsible for
the worst possible crimes are brought to justice in all cases, primarily by states, but as a last resort, by the ICC;
thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising its complementary
function of acting when a state is unable to or unwilling to do so, defeats the object and purpose of the Rome
Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the Rome
Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially devalue the
purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement, according to
petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ from, the
Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the principle of
complementarity underpins the creation of the ICC. As aptly pointed out by respondents and admitted by petitioners,
the jurisdiction of the ICC is to "be complementary to national criminal jurisdictions [of the signatory states]."54 Art. 1
of the Rome Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and
shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be
governed by the provisions of this Statute. (Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of every State to
exercise its criminal jurisdiction over those responsible for international crimes." This provision indicates that primary
jurisdiction over the so-called international crimes rests, at the first instance, with the state where the crime was
committed; secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 155 of the Rome
Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20, Rome Statute, which
again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as relevant, the provision
states that "no person who has been tried by another court for conduct x x x [constituting crimes within its
jurisdiction] shall be tried by the [International Criminal] Court with respect to the same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional conflict
between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of the Agreement
substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a while the fact that
the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed within their
respective borders, the complementary jurisdiction of the ICC coming into play only when the signatory states are
unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement, violated its
duty required by the imperatives of good faith and breached its commitment under the Vienna Convention57 to
refrain from performing any act tending to impair the value of a treaty, e.g., the Rome Statutehas to be rejected
outright. For nothing in the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the
efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute contains a
proviso that enjoins the ICC from seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international agreement it has entered into. We refer to
Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the requested State to act
inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is
required to surrender a person of that State to the Court, unless the Court can first obtain the cooperation of the
sending State for the giving of consent for the surrender.
Moreover, under international law, there is a considerable difference between a State-Party and a signatory to a
treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to refrain from acts
which would defeat the object and purpose of a treaty;58 whereas a State-Party, on the other hand, is legally obliged
to follow all the provisions of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not a StateParty for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would defeat the object
and purpose of the Rome Statute. Any argument obliging the Philippines to follow any provision in the treaty would
be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from meeting
their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles are only
legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with the Rome
Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite the person to the requesting State, shall give
priority to the request for surrender from the Court. x x x" In applying the provision, certain undisputed facts should
be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition or surrender of persons, i.e., the
Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome Statute still recognizes the
primacy of international agreements entered into between States, even when one of the States is not a State-Party
to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining away the
jurisdiction of the ICC to prosecute US nationals, government officials/employees or military personnel who commit
serious crimes of international concerns in the Philippines. Formulating petitioners argument a bit differently, the RP,
by entering into the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans committing
international crimes in the country.
We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of the Philippines
national criminal jurisdiction. National criminal jurisdiction being primary, as explained above, it is always the
responsibility and within the prerogative of the RP either to prosecute criminal offenses equally covered by the
Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try "persons" of the
US, as the term is understood in the Agreement, under our national criminal justice system. Or it may opt not to
exercise its criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the country
and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of the US whom the
Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to exercise either its
national criminal jurisdiction over the "person" concerned or to give its consent to the referral of the matter to the
ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with respect to "persons"
of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to undertake the
things set forth in the Agreement. Surely, one State can agree to waive jurisdictionto the extent agreed uponto
subjects of another State due to the recognition of the principle of extraterritorial immunity. What the Court wrote in
Nicolas v. Romulo59a case involving the implementation of the criminal jurisdiction provisions of the RP-US
Visiting Forces Agreementis apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of
jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a foreign State allowed to enter another States territory.
xxx
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that some of its
provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an international
agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not envision a reclusive
Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and
amity with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the otherwise encompassing
and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or waive some aspects
of their state power or agree to limit the exercise of their otherwise exclusive and absolute jurisdiction. The usual
underlying consideration in this partial surrender may be the greater benefits derived from a pact or a reciprocal
undertaking of one contracting party to grant the same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international law as part of the law of the land, a portion
of sovereignty may be waived without violating the Constitution.61 Such waiver does not amount to an
unconstitutional diminution or deprivation of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations and/or being
at variance with allegedly universally recognized principles of international law. The immoral aspect proceeds from
the fact that the Agreement, as petitioner would put it, "leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from delivering an American
criminal to the [ICC] x x x."63
The above argument is a kind of recycling of petitioners earlier position, which, as already discussed, contends that
the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process undermined its treaty
obligations under the Rome Statute, contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly described by
the Solicitor General, "is an assertion by the Philippines of its desire to try and punish crimes under its national law.
x x x The agreement is a recognition of the primacy and competence of the countrys judiciary to try offenses under
its national criminal laws and dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos and
Americans committing high crimes of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be prosecuted
and punished in the Philippines or in the US; or with the consent of the RP or the US, before the ICC, assuming, for
the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been met. For
perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to international
tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the crime under its
existing laws. With the view we take of things, there is nothing immoral or violative of international law concepts in
the act of the Philippines of assuming criminal jurisdiction pursuant to the non-surrender agreement over an offense
considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And without
specifically saying so, petitioner would argue that the non-surrender agreement was executed by the President, thru
the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner, the same having been
discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually faults the President

for performing, through respondents, a task conferred the President by the Constitutionthe power to enter into
international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and government, is the
sole organ and authority in the external affairs of the country.65 The Constitution vests in the President the power to
enter into international agreements, subject, in appropriate cases, to the required concurrence votes of the Senate.
But as earlier indicated, executive agreements may be validly entered into without such concurrence. As the
President wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan would put
it, "executive altogether." The right of the President to enter into or ratify binding executive agreements has been
confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-Arroyo,
represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion vested in her
by the Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the non-surrender
agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that pertains to her
office.
While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein, it may
perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue of
ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary.67 As the Court emphasized in said
case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the concurrence of
the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the President is his or her prerogative to refuse to
submit a treaty to the Senate; or having secured the latters consent to the ratification of the treaty, refuse to ratify
it.68 This prerogative, the Court hastened to add, is the Presidents alone and cannot be encroached upon via a writ
of mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to the Rome Statute.
Under Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring it into force, insofar
as the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise known as the
"Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity."
Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a
crime punishable under this Act if another court or international tribunal is already conducting the investigation or
undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused
persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable
extradition laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the States obligation in relation to grave
crimes against the law of nations, i.e., genocide, crimes against humanity and war crimes. Relying on the abovequoted statutory proviso, the view posits that the Philippine is required to surrender to the proper international
tribunal those persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for violations of
RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper international tribunal;
or (2) surrender the accused to another State if such surrender is "pursuant to the applicable extradition laws and
treaties." But the Philippines may exercise these options only in cases where "another court or international tribunal
is already conducting the investigation or undertaking the prosecution of such crime;" otherwise, the Philippines
must prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any crime under RA 9851, the
Philippines has the option to surrender such US national to the international tribunal if it decides not to prosecute
such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA 9851 is not subject
to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before
the Philippines can exercise such option, requires an amendatory law. In line with this scenario, the view strongly
argues that the Agreement prevents the Philippineswithout the consent of the USfrom surrendering to any
international tribunal US nationals accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of
RA 9851. Consequently, the view is strongly impressed that the Agreement cannot be embodied in a simple

executive agreement in the form of an exchange of notes but must be implemented through an extradition law or a
treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the Philippines adopts,
as a national policy, the "generally accepted principles of international law as part of the law of the land," the Court is
further impressed to perceive the Rome Statute as declaratory of customary international law. In other words, the
Statute embodies principles of law which constitute customary international law or custom and for which reason it
assumes the status of an enforceable domestic law in the context of the aforecited constitutional provision. As a
corollary, it is argued that any derogation from the Rome Statute principles cannot be undertaken via a mere
executive agreement, which, as an exclusive act of the executive branch, can only implement, but cannot amend or
repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the objects of the principles of law
or alters customary rules embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious, unless it is
embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate- ratified treaty
partakes of the nature of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA
9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not amend or is
repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if any, the
Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to frustrate the
objectives of the principles of law subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former merely
reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among others. The jurisdiction of the ICC pursuant to
the Rome Statute over high crimes indicated thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian law, genocide
and other crimes against humanity;70 (2) provides penal sanctions and criminal liability for their commission;71 and
(3) establishes special courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of the Agreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine State to
surrender to the proper international tribunal those persons accused of crimes sanctioned under said law if it does
not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the above quoted
proviso clearly provides discretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in statutory construction that
the word "may" denotes discretion, and cannot be construed as having mandatory effect.73 Thus, the pertinent
second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.
1avvphi1

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does not
exercise its primary jurisdiction in cases where "another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime," still, the tenor of the Agreement is not repugnant to Sec.
17 of RA 9851. Said legal proviso aptly provides that the surrender may be made "to another State pursuant to the
applicable extradition laws and treaties." The Agreement can already be considered a treaty following this Courts
decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In Nicolas, We held that "an executive
agreement is a treaty within the meaning of that word in international law and constitutes enforceable domestic law
vis--vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition Treaty,
which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is Presidential Decree
No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty,
would neither violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions were filed questioning
the power of the President to enter into foreign loan agreements. However, before the petitions could be resolved by
the Court, the Office of the Solicitor General filed a Manifestation and Motion averring that the Philippine
Government decided not to continue with the ZTE National Broadband Network Project, thus rendering the petition
moot. In resolving the case, the Court took judicial notice of the act of the executive department of the Philippines
(the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an executive
agreement. He stated that "an executive agreement has the force and effect of law x x x [it] cannot amend or repeal
prior laws."78 Hence, this argument finds no application in this case seeing as RA 9851 is a subsequent law, not a
prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason that under
par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an extraditable offense if it is punishable under
the laws in both Contracting Parties x x x,"79 and thereby concluding that while the Philippines has criminalized
under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes against humanity,
there is no similar legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot
be tried in the federal courts for an international crime unless Congress adopts a law defining and punishing the
offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In fact, as early
as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I, Title 18 of the
United States Code Annotated (USCA) provides for the criminal offense of "war crimes" which is similar to the war
crimes found in both the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of
years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the person committing such war
crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of
the United States (as defined in Section 101 of the Immigration and Nationality Act).
(c) Definition As used in this Section the term "war crime" means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12 August
1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV, Respecting the
Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d]) when
committed in the context of and in association with an armed conflict not of an international character;
or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on
Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at
Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to
such Protocol, willfully kills or causes serious injury to civilians.80
1avvphi1

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace or in time of war and with specific intent to destroy,
in whole or in substantial part, a national, ethnic, racial or religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs,
torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the
group in whole or in part;
(5) imposes measures intended to prevent births within the group; or

(6) transfers by force children of the group to another group;

shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover every crime listed within the
jurisdiction of the ICC and that there is a gap between the definitions of the different crimes under the US laws
versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled "On
Trial: The US Military and the International Criminal Court," as its basis.
At the outset, it should be pointed out that the report used may not have any weight or value under international law.
Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as follows: (1)
international conventions, whether general or particular, establishing rules expressly recognized by the contesting
states; (2) international custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
The report does not fall under any of the foregoing enumerated sources. It cannot even be considered as the
"teachings of highly qualified publicists." A highly qualified publicist is a scholar of public international law and the
term usually refers to legal scholars or "academic writers."82 It has not been shown that the authors83 of this report
are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes are
nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the Rome Statute
vis--vis the definitions under US laws:
Rome Statute
Article 6
Genocide
For the purpose of this Statute, "genocide"
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as
such:

US Law
1091. Genocide
(a) Basic Offense Whoever, whether
in the time of peace or in time of war
and with specific intent to destroy, in
whole or in substantial part, a national,
ethnic, racial or religious group as
such

(a) Killing members of the group;

(1) kills members of that group;

(b) Causing serious bodily or mental

harm to members of the group;

(2) causes serious bodily injury

to members of that group;

(c) Deliberately inflicting on the group

conditions of life calculated to bring
about its physical destruction in whole
or in part;

(3) causes the permanent

impairment of the mental
faculties of members of the
group through drugs, torture, or
similar techniques;

(d) Imposing measures intended to

prevent births within the group;
(e) Forcibly transferring children of the
group to another group.

(4) subjects the group to

conditions of life that are
intended to cause the physical
destruction of the group in
whole or in part;
(5) imposes measures intended
to prevent births within the
group; or
(6) transfers by force children of
the group to another group;
shall be punished as provided in
subsection (b).

Article 8
War Crimes

(d) Definition As used in this Section

the term "war crime" means any

2. For the purpose of this Statute, "war

crimes" means:
(a) Grave breaches of the
Geneva Conventions of 12
August 1949, namely, any of the
following acts against persons
or property protected under the
provisions of the relevant
Geneva Convention: x x x84
(b) Other serious violations of
the laws and customs applicable
in international armed conflict,
within
the
established
framework of international law,
namely, any of the following
acts:
xxxx
(c) In the case of an armed
conflict not of an international
character, serious violations of
article 3 common to the four
Geneva Conventions of 12
August 1949, namely, any of the
following acts committed against
persons taking no active part in
the
hostilities,
including
members of armed forces who
have laid down their arms and
those placed hors de combat by
sickness, wounds, detention or
any other cause:

conduct
(1) Defined as a grave breach in any
of the international conventions signed
at Geneva 12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the Hague
Convention IV, Respecting the Laws
and Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave breach
of common Article 3 (as defined in
subsection [d]85) when committed in
the context of and in association with
an armed conflict not of an
international character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on
3 May 1996), when the United States
is a party to such Protocol, willfully kills
or causes serious injury to civilians.86

xxxx
(d) Paragraph 2 (c) applies to
armed conflicts not of an
international character and thus
does not apply to situations of
internal
disturbances
and
tensions, such as riots, isolated
and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of
the laws and customs applicable
in armed conflicts not of an
international character, within
the established framework of
international law, namely, any of
the following acts: x x x.

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated as
much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction of the Court and crimes within
the Uniform Code of Military Justice that would expose US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the Rome Statute, they ensured that most of the crimes
were consistent with those outlined in the UCMJ and gave strength to complementarity for the US. Small areas of

potential gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed through
existing military laws.87 x x x
The report went on further to say that "[a]ccording to those involved, the elements of crimes laid out in the Rome
Statute have been part of US military doctrine for decades."88 Thus, the argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of incorporation. As
early as 1900, the esteemed Justice Gray in The Paquete Habana89 case already held international law as part of
the law of the US, to wit:
International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this
purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and
commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their
authors concerning what the law ought to be, but for the trustworthy evidence of what the law really is.90 (Emphasis
supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic legislation. The cited
ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v. Hudson,92 only applies to common law
and not to the law of nations or international law.93 Indeed, the Court in U.S. v. Hudson only considered the
question, "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal
cases."94 Stated otherwise, there is no common law crime in the US but this is considerably different from
international law.
The US doubtless recognizes international law as part of the law of the land, necessarily including international
crimes, even without any local statute.95 In fact, years later, US courts would apply international law as a source of
criminal liability despite the lack of a local statute criminalizing it as such. So it was that in Ex Parte Quirin96 the US
Supreme Court noted that "[f]rom the very beginning of its history this Court has recognized and applied the law of
war as including that part of the law of nations which prescribes, for the conduct of war, the status, rights and duties
of enemy nations as well as of enemy individuals."97 It went on further to explain that Congress had not undertaken
the task of codifying the specific offenses covered in the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken to codify that
branch of international law or to mark its precise boundaries, or to enumerate or define by statute all the acts which
that law condemns. An Act of Congress punishing the crime of piracy as defined by the law of nations is an
appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has
adopted by reference the sufficiently precise definition of international law. x x x Similarly by the reference in the
15th Article of War to offenders or offenses that x x x by the law of war may be triable by such military commissions.
Congress has incorporated by reference, as within the jurisdiction of military commissions, all offenses which are
defined as such by the law of war x x x, and which may constitutionally be included within that jurisdiction.98 x x x
(Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been held that genocide, war
crimes and crimes against humanity have attained the status of customary international law. Some even go so far as
to state that these crimes have attained the status of jus cogens.99
Customary international law or international custom is a source of international law as stated in the Statute of the
ICJ.100 It is defined as the "general and consistent practice of states recognized and followed by them from a sense
of legal obligation."101 In order to establish the customary status of a particular norm, two elements must concur:
State practice, the objective element; and opinio juris sive necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.103 It is
demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and consistency; and (3)
duration.104 While, opinio juris, the psychological element, requires that the state practice or norm "be carried out in
such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it."105
"The term jus cogens means the compelling law."106 Corollary, "a jus cogens norm holds the highest hierarchical
position among all other customary norms and principles."107 As a result, jus cogens norms are deemed

"peremptory and non-derogable."108 When applied to international crimes, "jus cogens crimes have been deemed
so fundamental to the existence of a just international legal order that states cannot derogate from them, even by
agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may exercise jurisdiction over
an individual who commits certain heinous and widely condemned offenses, even when no other recognized basis
for jurisdiction exists."110 "The rationale behind this principle is that the crime committed is so egregious that it is
considered to be committed against all members of the international community"111 and thus granting every State
jurisdiction over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine of
incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome Statute is not
declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and consistent practice on the part of
States,"113 does not, under the premises, appear to be obtaining as reflected in this simple reality: As of October 12,
2010, only 114114 States have ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier,
or on July 1, 2002. The fact that 114 States out of a total of 194115 countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the Statute have
attained the status of customary law and should be deemed as obligatory international law. The numbers even tend
to argue against the urgency of establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even feel bound by the
Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine representative signed
the Statute, but the treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring elements, thus:
Custom or customary international law means "a general and consistent practice of states followed by them from a
sense of legal obligation [opinio juris] x x x." This statement contains the two basic elements of custom: the material
factor, that is how the states behave, and the psychological factor or subjective factor, that is, why they behave the
way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This includes several
elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the generality of the
practice. x x x
xxxx
Once the existence of state practice has been established, it becomes necessary to determine why states
behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or
do they do it only as a matter of courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is
what makes practice an international rule. Without it, practice is not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in
the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a
particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be
deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they
are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires
belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first
element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as
evidenced by it requiring State consent.118 Even further, the Rome Statute specifically and unequivocally requires
that: "This Statute is subject to ratification, acceptance or approval by signatory States."119 These clearly negate the
argument that such has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be afforded great respect. The
power to enter into executive agreements has long been recognized to be lodged with the President. As We held in
Neri v. Senate Committee on Accountability of Public Officers and Investigations, "[t]he power to enter into an
executive agreement is in essence an executive power. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of powers among the
legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law,
courts should exercise utmost caution in declaring any executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US Non-Surrender Agreement ought
to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack of merit. No
costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

EN BANC

[G.R. No. 121139. July 12, 1996]

DECISION

ISIDRO B. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS and

AUGUSTO GARCIA, respondents.
FRANCISCO, J.:

This is a petition for certiorari under Rule 65 seeking to nullify the Resolution of the COMELEC
en banc dated June 30, 1995[1] in SPA No. 95-034 entitled "Isidro B. Garcia vs. Augusto M.
Garcia," for having been issued with grave abuse of discretion amounting to lack or excess of
jurisdiction. The assailed resolution reversed the previous Resolution of the Second Division of the
COMELEC promulgated on May 4, 1995,[2] wherein respondent Augusto M. Garcia was declared a
nuisance candidate resulting in the cancellation of his certificate of candidacy for the mayoralty seat
of Tagig.
During the May 8, 1995 local elections, petitioner Isidro B. Garcia and respondent Augusto M.
Garcia were both candidates for mayor in Tagig, Metro Manila. Claiming that respondent filed his
certificate of candidacy for no other legitimate purpose but to cause confusion and disarray among
the voters of Tagig considering the similarity in their surname, petitioner filed a petition with the
COMELEC for the declaration of respondent as a nuisance candidate pursuant to Section 69 of the
Omnibus Election Code.
In its Resolution dated May 4, 1995, the COMELEC (Second Division) granted the petition and
declared respondent as a nuisance candidate. The COMELEC based its ruling on the following: 1)
dubious veracity of respondent's certificate of nomination by the PDP-LABAN; 2) failure of
respondent to actively campaign; and 3) the absence of any campaign materials.
On May 10, 1995, two days after the election, respondent filed a motion for reconsideration[3]
with the COMELEC seeking the reversal of the aforementioned resolution. In the meanwhile, the
canvassing of the election returns proceeded which eventually resulted in the proclamation of
petitioner on May 23, 1995 as the winning candidate. However, another losing candidate, Ricardo
Papa filed a petition for annulment of the proclamation, and an election protest as well, with the
COMELEC and the Regional Trial Court of Pasig, respectively, against petitioner.
On June 30, 1995, the COMELEC en banc promulgated the assailed resolution, granting
private respondent's motion for reconsideration and reversing the previous resolution declaring him
a nuisance candidate, despite admitting that the motion has been rendered moot and academic as
a result of petitioner's proclamation on May 23, 1995 as winning candidate.

Petitioner is now before us seeking to nullify and set aside the resolution of the COMELEC en

The COMELEC discarded petitioner's claim that respondent lacked the logistical means and
machinery to pursue a serious political campaign due to the absence of propaganda materials, and
ruled that such assumption has no bearing on the qualification of respondent to seek public office.

banc.

It is argued that the COMELEC gravely abused its discretion when it granted respondent's
motion for reconsideration despite having been rendered moot and academic by the proclamation
of petitioner as duly elected mayor of Tagig. Petitioner bewails the fact that the motion was granted
with the end in view of benefiting the pending electoral protest filed by losing candidate Ricardo
Papa who, according to petitioner, was the one who instigated and conspired with respondent to
run for mayor to confuse the voters and undermine petitioner's chances of winning.

Private respondent however denies the abovementioned imputation and contends that his only
purpose in filing a motion for reconsideration from the resolution declaring him a nuisance
candidate was solely to reacquire his legal status as a legitimate and qualified candidate for public
office.

Well entrenched is the rule that where the issues have become moot and academic, there is no
justiciable controversy, thereby rendering the resolution of the same of no practical use or value.[4]

Surprisingly, despite respondent COMELEC's admission that private respondent's motion for
reconsideration has already been rendered moot and academic due to petitioner's proclamation as
duly elected mayor of Tagig in the May 8, 1995 elections, it nevertheless resolved to grant the
motion.

Obviously, the assailed resolution would no longer be of any practical use or value to private
respondent considering that he did not even dispute the proclamation of petitioner as the winning
candidate. In fact, even private respondent's sole purpose in filing his motion for reconsideration to
regain his legal status as a legitimate and qualified candidate for public office has been rendered
inconsequential as a result of petitioner's proclamation.

Petitioner was proclaimed mayor of Tagig as early as May 23, 1995, while the assailed
resolution was promulgated by respondent COMELEC on June 30, 1995. Undoubtedly, there was
more that ample opportunity for the COMELEC to be apprised of supervening events that rendered
private respondent's motion moot and academic, which in turn should have guided it to properly
deny the motion. But having failed to do so, respondent COMELEC acted with grave abuse of
discretion in granting the motion.

SO ORDERED.

ACCORDINGLY, the petition is hereby GRANTED. The resolution of the COMELEC dated
June 30, 1995 in SPA No. 95-034 is hereby SET ASIDE and a new one entered denying private
respondent's motion for reconsideration for being moot and academic.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.
[1] Rollo, p. 24.
[2] Rollo, p. 32.
[3] Rollo, p. 42.

[4] Southeast Asia Manufacturing Corporation vs. Municipal Council of Tagbilaran, 94 SCRA 341 (1979); Yorac vs.
Magalona, 3 SCRA 76 (1961).

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-543

August 31, 1946

JOSE O. VERA, ET AL., petitioners,

vs.
JOSE A. AVELINO, ET AL., respondents.
Jose W. Diokno and Antonio Barredo for petitioners.
Vicente J. Francisco and Solicitor General Taada for respondents.
J. Antonio Araneta of the Lawyers' Guild as amicus curiae.
BENGZON, J.:
Pursuant to a constitutional provision (section 4, Article X), the Commission on elections submitted, last May, to the
President and the Congress of the Philippines, its report on the national elections held the preceding month, and,
among other things, stated that, by reason of certain specified acts of terrorism and violence in the Provinces of
Pampanga, Nueva Ecija, Bulacan and Tarlac, the voting in said region did not reflect the true and free expression of
the popular will.
When the Senate convened on May 25, 1946, it proceeded with the selection of its officers. Thereafter, in the course
of the session, a resolution was approved referring to the report and ordering that, pending the termination of the
protest lodged against their election, the herein petitioners, Jose O. Vera, Ramon Diokno and Jose E. Romero
who had been included among the sixteen candidates for senator receiving the highest number of votes, proclaimed
by the Commission on Elections shall not be sworn, nor seated, as members of the chamber.
Pertinent parts of the resolution called Pendatun are these:
WHEREAS the Commission on Elections, charged under the Constitution with the duty of insuring free,
orderly, and honest elections in the Philippines, reported to the President of the Philippines on May 23, 1946,
that
". . . Reports also reached this Commission to the effect that in the Provinces of Bulacan, Pampanga,
Tarlac and Nueva Ecija, the secrecy of the ballot was actually violated; the armed bands saw to it that
their candidates were voted for; and that the great majority of the voters, thus coerced or intimadated,
suffered from a paralysis of judgement in the matter of exercising the right of suffrage; considering all
those acts of terrorism, violence and intimidation in connection with elections which are more or less
general in the Provinces of Pampanga, Tarlac, Bulacan and Nueva Ecija, this Commission believes that
the election in the provinces aforesaid did not reflect the true and free expression of the popular will. It
should be stated, however, that the Commission is without jurisdiction, to determine whether or not the
votes cast in the said provinces which, according to these reports have been cast under the influence
of threats or violence, are valid or invalid. . . ."
WHEREAS, the minority report of the Hon. Vicente de Vera, member of the Commission on Elections, says
among other things, that "we know that as a result of this chaotic condition, many residents of the four
provinces have voluntarily banished themselves from their home towns in order not to be subjected to the
prevailing oppression and to avoid being victimized or losing their lives"; and that after the election dead
bodies had been found with notes attached to their necks, reading, "Bomoto kami kay Roxas" (we voted for
Roxas);
WHEREAS the same Judge De Vera says in his minority report that in the four Provinces of Pampanga,
Tarlac, Bulacan and Nueva Ecija, the worst terrorism reigned during and after the election, and that if the
elections held in the aforesaid provinces were annulled as demanded by the circumstances mentioned in the

report of the Commission, Jose O. Vera, Ramon Diokno, and Jose Romero, would not and could not have
been declared elected;
xxx

xxx

xxx

WHEREAS the terrorism resorted to by the lawless elements in the four provinces mentioned above in order
to insure the election of the candidates of the Conservative wing of the Nationalist Party is of public
knowledge and that such terrorism continues to this day; that before the elections Jose O. Vera himself
declared as campaign Manager of the Osmea faction that he was sorry if Presidential Candidate Manuel A.
Roxas could not campaign in the Huk provinces because his life would be endangered; and that because of
the constant murders of his candidates and leaders, Presidential Candidate Roxas found it necessary to
appeal to American High Commissioner Paul V. McNutt for protection, which appeal American High
Commissioner personallyreferred to President Sergio Osme__a for appropriate action, and the Presidentin
turn ordered the Secretary of the existence and reign of such terrorism;
WHEREAS the Philippines, a Republic State, embracing the principles ofdemocracy, must condem all acts
that seek to defeat the popular will;
WHEREAS it is essential, in order to maintain alive the respect fordemocratic institutions among our people,
that no man or group of men be permitted to profit from the results of an election held under coercion, in
violation of law, and contrary to the principle of freedom of choice which should underlie all elections under
the Constitution;
WHEREAS protests against the election of Jose O. Vega, Ramon Diokno, and Jose Romero, have been filed
with the electoral Tribunal of the Senate of the Philippines on the basis of the findings of the Commission on
Elections above quoted;
NOW, THEREFORE, be it resolved by the Senate of the Philippines in session assembled, as it hereby
resolves, to defer the administration of oath and the sitting of Jose O. Vera, Ramon Diokno, and Jose
Romero, pending the hearing and decision on the protests lodged against their elections, wherein the
terrorism averred in the report of the Commission on Elections and in the report of the Provost Marshal
constitutes the ground of said protests and will therefore be the subject of investigation and determination.
Petitioners immediately instituted this action against their colleagues responsible for the resolution. They pray for an
order annulling it, and compelling respondents to permit them to occupy their seats, and to exercise their senatorial
prerogatives.
In their pleadings, respondents traverse the jurisdiction of this court, and assert the validity of the Pendatun
Resolution.
The issues, few and clear-cut, were thoroughly discussed at the extended oral argument and in comprehensive
memoranda submitted by both sides.
A.NO JURISDICTION
Way back in 1924, Senator Jose Alejandrino assaulted a fellow-member in the Philippine Senate. That body, after
investigation, adopted a resolution, suspending him from office for one year. He applied here for mandamus and
injunction to nullify the suspension and to require his colleagues to reinstate him. This court believed the suspension
was legally wrong, because, as senator appointed by the Governor-General, he could not be disciplined by the
Philippine Senate; but it denied the prayer for relief, mainly upon the theory of the separation of the three powers,
Executive, Legislative and Judicial. (Alejandrino vs. Quezon, 46 Phil., 81.) Said the decision:
. . . Mandamus will not lie against the legislative body, its members, or its officers, to compel the performance
of duties purely legislative in their character which therefore pertain to their legislative functions and over
which they have exclusive control. The courts cannot dictate action in this respect without a gross usurpation
of power. So it has been held that where a member has been expelled by the legislative body, the courts have
no power, irrespective of whether the expulsion was right or wrong, to issue a mandate to compel his
reinstatement. (Code of civil Procedure, section 222, 515; 18 R.C. L., 186, 187; Cooley, Constitutional
Limitations, 190; French vs. Senate [1905], 146 Cal; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols
[1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates [1904], 5 Porto
Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel. Crammer vs. Thorson
[1896], 33 L. R. A., ex rel. Bruce vs. Dunne [1913], 258 Ill., 441; People ex rel. La Chicote vs. Best [1907],
187 N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.) (Supra, pp. 88, 89.)
. . . Under our form of government the judicial department has no power to revise even the most arbitrary and

unfair action of the legislative department, or of either house thereof, taken in pursuance of the power
committed exclusively to that department by the constitution. (Supra, p. 93)
No court has ever held and we apprehend no court will ever hold that it possesses the power to direct the
Chief Executive or the Legislature or a branch thereof to take any particular action. If a court should ever be
so rash as to thus trench on the domain of either of the other departments, it will be the end of popular
government as we know it in democracies. (Supra, p. 94.)
Conceding therefore that the power of the Senate to punish its members for disorderly behavior does not
authorize it to suspend an appointive member from the exercise of his office for one year, conceding what has
been so well stated by the learned counsel for the petitioner, conceding all this and more, yet the writ prayed
for cannot issue, for the all-conclusive reason that the Supreme Court does not possess the power of
coercion to make the Philippine Senate take any particular action. . . . (Supra, p. 97.)
The same hands-off policy had been previously followed in Severino vs. Governor-General and Provincial Board of
Occidental Negros (16 Phil., 366) and Abueva vs. Wood (45 Phil., 612)
At this point we could pretend to erudition by tracing the origin, development and various applications of theory of
separation of powers, transcribing herein whole paragraphs from adjudicated cases to swell the pages of judicial
output. Yet the temptation must be resisted, and the parties spared a stiff dose of juris prudential lore about a
principle, which, after all, is the first fundamental imparted to every student of Constitutional Law.
Not that a passable excuse would be lacking for such a dissertation. The advent of the Republic, and the
consequent finality of our views on constitutional issues, may call for a definition of concepts and attitudes. But
surely, there will be time enough, as cases come up for adjudication.
Returning to the instant litigation, it presents no more than the questions, whether the Alejandro doctrine still
obtains, and whether the admitted facts disclose any features justifying departure therefrom.
When the Commonwealth Constitution was approved in 1935, the existence of three coordinate, co-equal and coimportant branches of the government was ratified and confirmed. That Organic Act contained some innovations
which established additional exceptions to the well-known separation of powers; for instance, the creation of the
Electoral Tribunal wherein Justices of the Supreme Court participate in the decision of congressional election
protests, the grant of rule-making power to the Supreme Court, etc.; but in the main, the independence of one power
from the other was maintained. And the Convention composed mostly of lawyers (143 out of a total of 202
members), fully acquainted with the Abueva, Alejandrino and Severino precedents did not choose to modify their
constitutional doctrine, even as it altered some fundamental tenets theretofore well established.1
However, it is alleged that, in 1936, Angara vs. Electoral Commission (63 Phil., 139), modified the aforesaid ruling.
We do not agree. There is no pronouncement in the latter decision, making specific reference to the Alejandrino
incident regarding our power or lack of it to interfere with the functions of the Senate. And three years later, in
1939, the same Justice Laurel, who had penned it, cited Alejandrino vs. Quezon as a binding authority of the
separation of powers. (Planas vs. Gil, 67 Phil., 62.) It must be stressed that, in the Angara controversy, no legislative
body or person was a litigant before the court, and whatever obiter dicta, or general expressions, may therein found
can not change the ultimate circumstance that no directive was issued against a branch of the Legislature or any
member thereof.2 This Court, in that case, did not require the National Assembly or any assemblyman to do any
particular act. It only found it "has jurisdiction over the Electoral Commission." (Supra, 63 Phil., 161.)
That this court in the Angara litigation made declarations, nullifying a resolution of the National Assembly, is not
decisive. In proper cases this court may annul any Legislative enactment that fails to observe the constitutional
limitations. That is a power conceded to the judiciary since Chief Justice Marshall penned Marbury vs. Madison in
1803. Its foundation is explained by Justice Sutherland in the Minimum Wage Case (261 U. S., 544).Said the Court:
. . . The Constitution, by its own terms, is the supreme law of the land, emanating from the people, the
repository of ultimate sovereignty under our form of government. A congressional statute, on the other hand,
is the act of an agency of this sovereign authority, and if it conflicts with the Constitution, must fall; for that
which is not supreme must yield to that which is. To hold it invalid (if it be invalid) is a plain exercise of the
judicial power, that power vested in courts to enable them to administer justice according to law. From the
authority to ascertain and determine the law in a given case there necessa ruly results, in case of conflict, the
duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which,
transcending the Constitution, is no effect, and binding on no one. This is not the exercise of a substantive
power to review and nullify acts of Congress, for such no substantive power exists. It is simply a necessary
concomitant of the power to hear and dispose of a case or controversy properly before the court, to the
determination of which must be brought the test and measure of the law.

And the power is now expressly recognized by our Organic Act. (See sections 2 and 10. Article VIII.)
But we must emphasize, the power is to be exercised in proper cases, with the appropriate parties.
It must be conceded that the acts of the Chief executive performed within the limits of his jurisdiction are his
official acts and courts will neither direct nor restrain executive action in such cases. The rule is noninterference. But from this legal premise, it does not necessarily follow that we are precluded from making an
inquiry into the validity or constitutionality of his acts when these are properly challenged in an appropriate
legal proceeding. . . . In the present case, the President is not a party to the proceeding. He is neither
compelled nor restrained to actin a particular way. . . . This court, therefore, has jurisdiction over the instant
proceedings and will accordingly proceed to determine the merits of the present controversy." (Planas vs. Gil.,
67 Phil., 62, 73, 74, 76.) (Emphasis ours.) (See also Lopez vs. De los Reyes, 55 Phil., 170.)
More about the Angara precedent: The defendant there was only the Electoral Commission which was "not a
separate department of the Government" (Vol. 63,p. 160), and exercised powers "judicial in nature." (Supra, p. 184)
Hence, against our authority, there was no objection based on the independence and separation of the three coequal departments of Government. Besides, this court said no more than that, there being a conflict of jurisdiction
between two constitutional bodies, it could not decline to take cognizance of the controversy to determine the
"character, scope and extent" of their respective constitutional spheres of action. Here, there is actually no
antagonism between the Electoral Tribunal of the Senate and the Senate itself, for it is not suggested has adopted a
rule contradicting the Pendatun Resolution. Consequently, there is no occasion for our intervention. Such conflict of
jurisdiction, plus the participation of the Senate Electoral Tribunal are essential ingredients to make the facts of this
case fit the mold of the Angara doctrine.
Now, under the principles enunciated in the Alejandrino case, may this petition be entertained? The answer must
naturally be in the negative. Granting that the postponement of the administration of the oath amounts to suspension
of the petitioners from their office, and conceding arguendo that such suspension is beyond the power of the
respondents, who in effect are and acted as the Philippine Senate (Alejandrino vs. Quezon, 46 Phil., 83, 88),this
petition should be denied. As was explained in the Alejandrino case, we could not order one branch of the
Legislature to reinstate a member thereof. To do so would be to establish judicial predominance, and to upset the
classic pattern of checks and balances wisely woven into our institutional setup.
Adherence to established principle should generally be our guiding criterion, if we are to escape the criticism voiced
once by Bryce in American Commonwealth thus:
The Supreme Court has changed its color i. e., its temper and tendencies, from time to time according to the
political proclivities of the men who composed it. . . . Their action flowed naturally from the habits of thought
they had formed before their accession to the bench and from the sympathy they could not feel for the
doctrine on whose behalf they had contended. (The Annals of the American Academy of Political and Social
Science, May, 1936, p. 50.)
Needless to add, any order we may issue in this case should, according to the rules, be enforceable by contempt
proceedings. If the respondents should disobey our order, can we punish them for contempt? If we do, are we not
thereby destroying the independence, and the equal importance to which legislative bodies are entitled under the
Constitution?
Let us not be overly influenced by the plea that for every wrong there is are medy, and that the judiciary should
stand ready to afford relief. There are undoubtedly many wrongs the judicature may not correct, for instance, those
involving political questions. Numerous decisions are quoted and summarized under this heading in 16 Corpus Juris
Secundum, section 145.
Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for all political and
social ills. We should not forget that the Constitution had judiciously allocated the powers of government to three
distinct and separate compartments; and that judicial interpretation has tended to the preservation of the
dependence of the three, and a zealous regard of the prerogatives of each, knowing full well that one is not the
guardian of the others and that, for official wrong-doing, each may be brought to account, either by impeachment,
trial or by the ballot box.
The extreme case has been described wherein a legislative chamber, without any reason whatsoever, decrees by
resolution the incarceration, for years, of a citizen. And the rhetorical question is confidently formulated. Will this
man be denied relief by the courts?
Of course not: He may successfully apply for habeas corpus, alleging the nullity of the resolution and claiming for
release. But then, the defendant shall be the officer or person, holding him in custody, and the question therein will
be the validity or invalidity of resolution. That was done in Lopez vs. De los Reyes, supra. (See also Kilbourn vs.

Thompson, 103 U.S. 168; 26 Law. ed., 377, p. 391.) Courts will interfere, because the question is not a political one,
the "liberty of citizen" being involved (Kilbourn vs. Thompson, supra) and the act will clearly beyond the bounds of
the legislative power, amounting to usurpation of the privileges of the courts, the usurpation being clear, palpable
and oppressive and the infringement of the Constitution truly real. (See 16 C.J.S., p. 44.)
Nevertheless, suppose for the moment that we have jurisdiction:
B.PROHIBITION DOES NOT LIE
Petitioners pray for a writ of prohibition. Under the law, prohibition refers only to proceedings of any tribunal,
corporation, board, or person, exercising functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the
respondents do not exercise such kind of functions, theirs being legislative, it is clear the dispute falls beyond the
scope of such special remedy.
C.SENATE HAS NOT EXCEEDED POWERS
Again let us suppose the question lies within the limits of prohibition and of our jurisdiction.
Before the organization of the Commonwealth and the promulgation of the Constitution, each House of the
Philippine Legislature exercised the power to defer oath-taking of any member against whom a protest had been
lodged, whenever in its discretion such suspension was necessary, before the final decision of the contest. The
cases of Senator Fuentebella and Representative Rafols are known instances of such suspension. The discussions
in the constitutional Convention showed that instead of transferring to the Electoral Commission all the powers of
the House or Senate as "the sole judge of the election, returns, and qualifications of the members of the National
Assembly," it was given only jurisdiction over "all contests" relating to the election, etc. (Aruego, The Framing of the
Philippine Constitution, Vol. I, p. 271.) The proceedings in the Constitutional Convention on this subject are
illuminating:
It became gradually apparent in the course of the debates that the Convention was evenly divided on the
proposition of creating the Electoral Commission with the membership and powers set forth in the draft. It was
growing evident, too, that the opposition to the Electoral Commission was due to rather inclusive power of
that body to judge not only of cases contesting the election of the members of the National Assembly, but also
of their elections, returns, and qualifications.
Many of the delegates wanted to be definitely informed of the scope of the powers of the Electoral Commission as
defined in the draft before determining their final decision; for if the draft meant to confer upon the Electoral
Commission the inclusive power to pass upon the elections, returns, and qualifications contested or not of the
members of the National Assembly, they were more inclined to vote against the Electoral Commission. In an attempt
to seek this clarification, the following interpretations took place:
xxx

xxx

xxx

Delegate Labrador.Does not the gentleman from Capiz believe that unless this power is granted to the
assembly, the assembly on its own motion does not have the right to contest the election and qualification of
its members?
Delegate Roxas.I have no doubt that the gentleman is right. If this right is retained, as it is, even if twothirds of the assembly believe that a member has not the qualifications provided by law, they cannot remove
him from that reason.
xxx

xxx

xxx

In the course of the heated debates, with the growing restlessness on the part of the Convention, President
Recto suspended the session in order to find out if it was possible to arrive at a compromise plan to meet the
objection.
When the session was resumed, a compromise plan was submitted in the form of an amendment presented
by Delegates Francisco, Ventura, Lim, Vinzons, Rafols, Mumar, and others, limiting the power of the Electoral
Commission to the judging of all cases contesting elections, returns, and qualifications of members of the
National Assembly. Explaining the difference between the amendment thus proposed and the provision of the
draft, Delegate Roxas, upon the request of President Recto, said:
The difference, Mr. President, consists only in obviating the objection pointed out by various delegates to the
effect that the first clause of the draft which states "The election, returns, and qualifications of members of the
National Assembly" seems to give to the Electoral commission the power to determine also the election of the

members who have not been protested. And in order to obviate that difficulty, we believe that the amendment
is right in that sense . . . that is, if we amend the draft so that it should read as follows: "All cases contesting
the election, etc.", so that the judges of the Electoral Commission will limit themselves only to cases in which
there has been a protest against the returns.
The limitation to the powers of the Electoral Commission proposed in the compromise amendment did much
to win in favor of the Electoral Commission many of its opponents; so that when the amendment presented by
Delegate Labrador and others to retain in the Constitution the power of the lawmaking body to be the sole
judge of the elections, returns, and qualifications of its members was put to a nominal vote, it was defeated by
98 negative votes against 56 affirmative votes.
With the defeat of the Labrador amendment, the provision of the draft creating the Electoral Commission, as
modified by the compromise amendment, was consequently approved.
"All cases contesting the elections, returns and qualifications of the members of the National Assembly shall
be judged by an electoral commission, composed of three members elected by the party having the largest
number of votes in the National Assembly, three elected by the members of the party having the second
largest number of votes, and three justices of the Supreme Court designated by the Chief, the Commission to
be presided over by one of said justices."
In the special committee on style, the provision was amended so that the Chairman of the Commission
should be the senior Justice in the Commission, and so that the Commission was to be the sole judge of the
election, returns, and qualifications of the members of the National Assembly. As it was then amended, the
provision read:
"There shall be an Electoral Commission composed of three Justices of the Supreme court designated
by the Chief Justice, and of six Members chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of votes, and three by the party having the second
largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The
Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members
of the National Assembly."
The report of the special committee on style on the power of the Commission was opposed on the floor of the
Convention by Delegate Confesor, who insisted that the Electoral Commission should limit itself to judging
only of all contests relating to the elections, returns, and qualifications of the members of the National
Assembly. The draft was amended accordingly by the Convention.
As it was finally adopted by the Convention, the provision read:
There shall be an Electoral Commission . . . The Electoral Commission shall be the sole judge of all contests
relating to the election, returns, and qualifications of the Members of the National Assembly. (Aruego, The
Framing of the Philippine Constitution, Vol. I, pp. 267, 269, 270, 271 and 272.).
Delegate Roxas rightly opined that "if this draft is retained" the Assembly would have no power over election and
qualifications of its members; because all the powers are by the draft vested in the Commission.
The Convention, however, bent on circumscribing the latter's authority to "contests" relating to the election, etc.
altered the draft. The Convention did not intend to give it all the functions of the Assembly on the subject of election
and qualifications of its members. The distinction is not without a difference. "As used in constitutional provisions",
election contest "relates only to statutory contests in which the contestant seeks not only to oust the intruder, but
also to have himself inducted into the office."(Laurel on Elections, Second Edition, p. 250; 20 C.J., 58.)
One concrete example will serve to illustrate the remaining power in either House of Congress: A man is elected by
a congressional district who had previously served ten years in Bilibid Prison for estafa. As he had no opponent, no
protest is filed. And the Electoral Tribunal has no jurisdiction, because there is no election contest. (20 C.J., 58,
supra.) When informed of the fact, may not the House, motu propio postpone his induction? May not the House
suspend, investigate and thereafter exclude him?3 It must be observed that when a member of the House raises a
question as to the qualifications of another, an "election contest" does not thereby ensue, because the former does
not seek to be substituted for the latter.
So that, if not all the powers regarding the election, returns, and qualifications of members was withdrawn by the
Constitution from the Congress; and if, as admitted by petitioners themselves at the oral argument, the power to
defer the oath-taking, until the contests is adjudged, does not belong to the corresponding Electoral Tribunal, then it
must be held that the House or Senate still retains such authority, for it has not been transferred to, nor assumed by,
the Electoral Tribunal. And this result flows, whether we believe that such power (to delay induction) stemmed from

the (former) privilege of either House to be judge of the election, returns, and qualifications of the members thereof,
or whether we hold it to be inherent to every legislative body as a measure of self-preservation.
It is customary that when a number of persons come together to form a legislative body, ". . . the first organization
must be temporary, and if the law does not designate the person who shall preside over such temporary
organization, the persons assembled and claiming to be members may select one of their number for that purpose.
The next step is to ascertain in some convenient way the names of the person who are, by reason of holding the
proper credentials, prima facie entitled to seats, and therefore entitled to take part in permanent organization of the
body. In the absence of any statutory or other regulation upon this subject, a committee on credentials is usually
appointed, to whom all credentials to be entitled to seats. . . . (Laurel on Elections, Second Edition, pp. 356, 357,
quoting McCrary on Elections.)
Therefore, independently of constitutional or statutory grant, the Senate has, under parliamentary practice, the
power to inquire into the credentials of any member and the latter's right to participate in its deliberations. As we
have seen, the assignment by the constitution of the Electoral Tribunal does not actually negative that power
provided the Senate does not cross the boundary line, deciding an election contest against the member. Which the
respondents at bar never attempted to do. Precisely, their resolution recognized, and did not impair, the jurisdiction
of the Electoral Tribunal to decide the contest. To test whether the resolution trenched on the territory of the last
named agency let ask the question: May the Electoral Tribunal of the Senate order that Body to defer the admission
of any member whose election has been contested? Obviously not. Then it must be conceded that the passage of
the disputed resolution meant no invasion of the former's realm.
At this juncture the error will be shown of the contention that the Senate has not this privilege "as a residuary
power". Such contention is premised on the proposition that the Houses of the Philippine Congress possess only
such powers as are expressly or impliedly granted by the Constitution. And an American decision is quoted on the
powers of the United States Congress. The mistake is due to the failure to differentiate between the nature of
legislative power under the Constitution of the United States, and legislative power under the State Constitutions
and the Constitution of the Commonwealth (now the Republic). It must be observed that the Constitution of the
United States contains only a grant or delegation of legislative powers to the Federal Government, whereas, the
other Constitutions, like the Constitution of the Commonwealth (now the Republic), are limits upon the plenary
powers of legislation of the Government. The legislative power of the United States Congress is confined to the
subject on which it is permitted to act by the Federal constitution. (Dorr vs. United States, 195 U. S., 140; Martin vs.
Hunter, 1 Wheat., 326; McCullock vs. Maryland, 4 Wheat., 405; United States vs. Cruikshank, 92 U.S., 551.) The
legislative power of the Philippine Congress is plenary, subject only to such limitations, as are found in the
Republic's Constitution. So that any power, deemed to be legislative by usage and tradition, is necessarily
possessed by the Philippine Congress, unless the Organic Act has lodged it elsewhere.
Another line of approach. The Senate, as a branch of the legislative department, had the constitutional power to
adopt rules for its proceedings(section 10 [3], Article VI of the Constitution), and by legislative practice it is conceded
the power to promulgate such orders as may be necessary to maintain its prestige and to preserve its dignity.4 We
are advised by the respondents that, after weighing the propriety or impropriety of the step, the Senate, in the
exercise of its authority and discretion and of its inherent power of self-preservation, resolved to defer the
administration of oath and the sitting of the petitioners pending determination of the contest. It is not clear that the
measure had no reasonable connection with the ends in view, and neither does it palpably transcend the powers of
the public deliverative body. On the contrary, there are reasons to believe it was prompted by the dictates of ordinary
caution, or of public policy. For, if, as reported by the corresponding constitutional agency, concededly well-posted
on the matter by reason of its official duties, the elections held in the Provinces of Pampanga, Bulacan, Tarlac, and
Nueva Ecija were so tainted with acts of violence and intimidation, that the result was not the legitimate expression
of the voters' choice, the Senate made no grievous mistake in foreseeing the probability that, upon proof of such
widespread lawlessness, the Electoral Tribunal would annull the returns in that region (see Gardiner vs. Romulo, 26
Phil., 521; Laurel, Elections [2d ed.], p. 488 et seq.), and declare herein petitioners not entitled to seats in the
Senate. Consequently, to avoid the undesirable result flowing from the participation of disqualified members in its
deliberations, it was prudent for it to defer the sitting of the respondents. True, they may have no direct connection
with the acts of intimidation; yet the votes may be annulled just the same, and if that happens, petitioners would not
among the sixteen senators elected. Nor was it far-fetched for the Senate to consider that "in order to maintain alive
the respect for democratic institutions among our people, no man or group of men (should) be permitted to profit
from the results of an election held under coercion, in violation of law and contrary to the principle of freedom of
choice which should underlie all elections under the Constitution." (Exhibit A of petitioners' complaint.)
a. Justices in the Electoral Tribunals
During our deliberations, it was remarked that several justices subscribing the majority opinion, belong to the
electoral tribunals wherein protests connected with the Central Luzon polls await investigation. Mulling over this, we
experience no qualmish feelings about the coincidence. Their designation to the electoral tribunals deducted not a

whit from their functions as members of this Supreme Court, and did not disqualify them in this litigation. Nor will
their deliverances here at on a given question operate to prevent them from voting in the electoral forum on identical
questions; because the Constitution, establishing no incompatibility between the two roles, naturally did not
contemplate, nor want, justices opining one way here, and thereafter holding otherwise, pari materia, in the electoral
tribunals, or vice-versa.
Anyhow, these should be no diversity of thought in a democratic country, at least, on the legal effects of the alleged
rampant lawlessness, root and basis of the Pendatun Resolution.
However, it must be observed and emphasized, herein is no definite pronouncement that terrorism and violence
actually prevailed in the district to such extent that the result was not the expression of the free will of the electorate.
Such issue was not tendered in these proceedings. It hinges upon proof to be produced by protestants and
protestees at the hearing of the respective contests.
b. Doubt and presumption.
After all is said or written, the most that may be conceded to the industry of petitioners' counsel is that the Senate
power, or lack of power, to approve the resolution is not entirely clear. We should, therefore, indulge the presumption
that official duty has been performed regularly, (Rule 123, section 69, Rule of Court), and in the right manner:
It is a general principle to presume that public officers act correctly until the contrary is shown. United States
vs. Weed, 5 Wall., 62.
It will be presumed, unless the contrary be shown, that a public officer acted in accordance with the law and
his instructions. Moral y Gonzales vs. Ross (Gonzales vs. Ross), 120 U.S., 605; 7 Sup. Ct. Rep., 705.
Officers charged with the performance of a public duty are presumed to perform it correctly. Quinlan vs.
Greene Country, 205 U.S., 410; 27 Sup. Ct. Rep., 505. (United State Supreme Court Reports Digest, Vol. 5,
p. 3188.)
It is presumed that the legislature has acted within its constitutional powers. (See cases cited at p. 257, 16
C.J.S., note 1.)
And should there be further doubt, by all the maxims of prudence, left alone comity, we should heed the off-limits
sign at the Congressional Hall, and check the impulse to rush in to set matters aright firm in the belief that if a
political fraud has been accomplished, as petitioners aver, the sovereign people, ultimately the offended party, will
render the fitting verdict at the polling precints.
c. Membership in the Constitutional Convention
The theory has been proposed modesty aside that the dissenting members of this Court who were delegates
to the Constitutional Convention and were "co-authors of the Constitution" "are in a better position to interpret" that
same Constitution in this particular litigation.
There is no doubt that their properly recorded utterances during the debates and proceedings of the Convention
deserve weight, like those of any other delegate therein. Note, however, that the proceedings of the Convention "are
less conclusive of the power construction of the instrument than are legislative proceedings of the proper
construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives.
(Willoughby on the Constitution, Vol. I, pp. 54, 55.)
Their writings (of the delegates) commenting or explaining that instrument, published shortly thereafter, may, like
those of Hamilton, Madison and Jayin The Federalist here in the Philippines, the book of Delegate Aruego, supra,
and of others have persuasive force. (Op. cit., p. 55.)
But their personal opinion on the matter at issue expressed during our deliberations stand on a different footing: If
based on a "fact" known to them, but not duly established or judicially cognizable, it is immaterial, and their brethren
are not expected to take their word for it, to the prejudice of the party adversely affected, who had no chance of
rebuttal. If on a matter of legal hermeneutics, their conclusions may not, simply on account of membership in the
Convention, be a shade better, in the eyes of the law. There is the word "deference" to be sure. But deference is a
compliment spontaneously to be paid never a tribute to be demanded.
And if we should (without intending any disparagement) compare the Constitution's enactment to a drama on the
stage or in actual life, we would realize that intelligent spectators or readres often know as much, if not more, about
the real meanings, effects or tendency is of the event, or incidents thereof, as some of the actors themselves, who

sometimes become so absorbed in fulfilling their emotional roles that they fail to watch the other scenes or to
meditate on the larger aspects of the whole performance, or what is worse, become so infatuated with their lines as
to construe the entire story according to their prejudices or frustrations. Perspective and disinterestedness help
certainly a lot in examining actions and occurrences.
Come to think of it, under the theory thus proposed, Marshall and Holmes (names venerated by those who have
devoted a sizable portion of their professionals lives to analyzing or solving constitutional problems and
developments) were not so authoritative after all in expounding the United States Constitution because they were
not members of the Federal Convention that framed it!
D.ALLEGED DUTY OF RESPONDENTS
Quoting section 12 of Commonwealth Act No. 725, counsel for petitioners assert that it was respondents' duty
legally inescapable, to permit petitioners to assume office and take part in the current regular session. The section
reads partly:
The candidates for Member of the House of Representatives and those for Senators who have been
proclaimed elected by the respective Board of Canvassers and the Commission on Elections shall assume
office and shall hold regular session for the year nineteen hundred and forty-six on May twenty-five, nineteen
hundred and forty-six. (Section 12, Commonwealth Act. No. 725.)
We have carefully considered the argument. We opine that, as contended by the Solicitor-General, this provision is
addressed to the individual member of Congress, imposing on him the obligation to come to Manila, and join his
colleagues in regular session. However, it does not imply that if, for any reason, he is disqualified, the House is
powerless to postpone his admission. Suppose that after elections a member is finally convicted of treason. May not
the House refuse him outright admission, pending an investigation (by it or the Electoral Tribunal as the case may
be) as to his privilege to sit there? Granting the right to admission as the counterpart of the duty to assume office by
virtue of said section 12; we must nevertheless allow that such rights would not be peremptory whenever it contacts
other rights of equal or superior force. To illustrate: if the law provided that all children, seven years or more "shall go
to school", it can not reasonably be inferred that school authorities are bound to accept every seven-year boy, even
if he refuses to pay fees, or to present the certificates required by school regulations.
Furthermore, it would not be erroneous to maintain that any right spelled out of section 12 must logically be limited
to those candidates whose proclamation is clear, unconditional and unclouded, and that such standard is not met by
the petitioners, because in the very document attesting to their election one member of the Commission on
Elections demurred to the non-exclusion of the votes in Central Luzon, calling attention to the reported reign of terror
and violence in that region, and virtually objecting to the certification of herein petitioners. To be sure, it was the
beclouded condition of petitioner's credential (certificate of canvass) that partly prompted the Senate to enact the
precautionary measure herein complained of. And finding no phrase or sentence in the Constitution expressly or
impliedly outlawing the step taken by that legislative body, we should be, and we are, reluctant to intervene.
Indeed, had the Senate been officially informed that the inclusion of petitioners' name in the Commission's certificate
had been made at the point of a gangster's automatic, none will deny the appositeness of the postponement of their
induction, pending an inquiry by the corresponding authorities. Yet the difference between such situation and the
instant litigation is one of degree, broad and wide perhaps, but not altering the dominant legal principle.
In answer to the suggestions as to abuse of the power it should be stated that the mere possibility of abuse is no
conclusive argument against the existence of the power, of the power, for the simple reason that every official
authority is susceptible of misuse. And everybody knows that when any people will discover the methods to curb it.
Perhaps it is necessary to explain that this decision goes no further than to recognize the existence of
Congressional power. It is settled that the point whether such power has been wisely or correctly exercised, is
usually beyond the ken of judicial determination.
E.PARLIAMENTARY PRIVILEGES
One final consideration.
The Constitution provides (Article VI, section 15) that "for any speech or debate" in congress, Senators and
congressmen "shall not be questioned in any other place." The Supreme Court of the United States has interpreted
this privilege to include the giving of a vote or the presentation of a resolution.
. . . It would be a narrow view of the constitutional provision to limit it towards spoken in debate. The reason of
the rule is as forcible in its application to written reports presented in that body by its committees, to
resolutions offered, which, though in writing, must be reproduced in speech, and to the act of voting, . . .

(Kilbourn vs. thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.)
In the above case, Kilbourn, for refusing to answer questions put to him by the House of Representatives of the
United States Congress, concerning the business of a real estate partnership, was imprisoned for contempt by
resolution of the house. He sued to recover damages from the sergeant at arms and the congressional members of
the committee, who had caused him to be brought before the house, where he was adjudged to be in contempt. The
Supreme Court of the United States found that the resolution of the House was void for want of jurisdiction in that
body, but the action was dismissed as to the members of the committee upon the strength of the herein abovementioned congressional immunity. The court cited with approval the following excerpts from an earlier decision of
the Supreme Court of Massachusetts:
These privileges are thus secured, not with the intention of protecting the members against prosecutions for
their own benefit, but to support the rights of the people, by enabling their representatives to execute the
functions of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought
not to be construed strictly, but liberally, that the full design of it may be answered. . . (103 U.S., 203.)
(Emphasis ours.)
Commenting on this Congressional privilege, Willoughby relates apparently as controlling, the following incident:
In 1910, several Members of Congress having been served with a writ of mandamus in a civil action brought
against them as members of the Joint Committee on Printing and growing out a refusal of a bid of the Valley
Paper Company, for the furnishing of paper, the Senate resolved that the Justice issuing the writ had
"unlawfully invaded the constitutional privileges and prerogatives of the Senate of the United States and of
three Senators; and was without jurisdiction to grant the rule, and Senators are directed to make no
appearance in response thereto." (Willoughby on the Constitution of the United States, Vol. I, Second Edition,
p. 616.)
Respondents are, by this proceeding, called to account for their votes in approving the Pendatum Resolution.
Having sworn to uphold the Constitution, we must enforce the constitutional directive. We must not question, nor
permit respondents to be questioned here in connection with their votes. (Kilbourn vs. Thompson, supra.)
Case dismissed. No costs.
Moran, C J., Paras, Pablo, and Padilla, JJ., concur.

Separate Opinions
HILADO, J., concurring:
I concur.
Petitioners, alleging that they have been elected Senators in the last national elections, have filed this proceeding
against respondents who, according to the complaint, have been likewise elected Senators in the same elections. In
paragraph III of the complaint it is alleged that respondent Hon. Jose A. Avelino is joined in this proceeding as
member and President of the Senate. Two kinds of remedies are sought by petitioners, one ancillary and the other
principal. The ancillary they would have consist in a preliminary injunction addressed to "respondents, their officials,
employees, agents and other persons acting under them, ordering them", until the order is remanded by the court,
"to desist and to abstain from carrying out" the so-called Pendatun Resolution complained of. (Exhibit A attached to
complaint.) The principal remedy, if the suit is to prosper, would be as follows: a judicial declaration that the said
resolution is entirely null and void, a definite order of this court prohibiting respondents, and each of them, from
preventing petitioners from "continuing in their seats in the Senate of the Philippines and freely exercising their office
as Senators, and likewise prohibiting them from adopting any other ulterior procedure to execute the said
resolution."
1. Has this court power to issue the writ of preliminary injunction sought by petitioners under the facts alleged in their
complaint?
The power of this court to issue auxiliary writs and process is defined in, and conferred by, section 19 of Act No.
136, as follows:
Sec. 19. Power to issue all necessary auxiliary writs.The Supreme Court shall have power to issue writs of
certiorari and all other auxiliary writs and process necessary to the complete exercise of its original or
appellate jurisdiction.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President,
JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his
capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI"
EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO
S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria MacapagalArroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents.
x-------------------------x
G.R. No. 169659

April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria MacapagalArroyo, Respondent.
x-------------------------x
G.R. No. 169660

April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as
Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667

April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.
x-------------------------x
G.R. No. 169834

April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x

G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO,
ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES,
Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential in
pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a
distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any
greater number; and in proportion as the number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence,
the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by
issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and
void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come
from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance
of the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and offices including those employed in Government Owned and
Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the
Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the
railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the
North Rail Project.
The Senate Committee on National Defense and Security likewise issued invitations2 dated September 22, 2005 to
the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the
AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo;
Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q.
Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms
that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World";
(3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger";
(4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator
Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing

operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are
currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita
a letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said
officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to
[his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource
persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had
been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"7 which, pursuant to
Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of
the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive Branch of the government shall secure the
consent of the President prior to appearing before either House of Congress.
When the security of the State or the public interest so requires and the President so states in writing, the
appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees shall not use or divulge confidential or classified
information officially known to them by reason of their office and not made available to the public to prejudice the
public interest.
Executive privilege covers all confidential or classified information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the President and the public official covered by this executive order
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of treaties and executive agreements
(Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department heads are covered by the executive
privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the
Chief of Staff are covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in
the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security Adviser are covered by the executive
privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b)
hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the
rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464,
and another letter8 informing him "that officials of the Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to
[E.O. 464]" and that "said officials have not secured the required consent from the President." On even date which
was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon,
Chairperson of the Committee on National Defense and Security, informing him "that per instruction of [President
Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from the President" and "that no approval has been
granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled
by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani
among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her
approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464,
sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso,
Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas
Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government
employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance
of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional;
that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President
Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress
due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes
them from fulfilling their respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a
political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights
and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and
CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to
transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and

law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and
void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource
non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized
sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general
public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of
public concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared null and
void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the
issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates
powers and functions and conceals information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate
and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented
through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the
government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and
other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga
replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing" and
that "they will attend once [their] request is approved by the President." As none of those invited appeared, the
hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani
program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on
October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director
Norlito R. Gicana,17 and those from the Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local
Government Undersecretary Marius P. Corpus21 communicated their inability to attend due to lack of appropriate
clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however,
Secretary Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization
of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their
petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and
void.
All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or
controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming

that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the
NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in
G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No.
171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 was
granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in
the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on
March 13, 2006 for the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to
its publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites
for a valid exercise of the Courts power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the
act must have standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667
make it clear that they, adverting to the non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were brought to vindicate the constitutional duty of
the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight
functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and

privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention
of any investigation called by the House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of
the other petitioner groups and individuals who profess to have standing as advocates and defenders of the
Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties
"injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury
by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin42 and Valmonte v. Philippine
Charity Sweepstakes Office,43 respondents assert that to be considered a proper party, one must have a personal
and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of
E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in
a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles
the ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate,
including its individual members, has a substantial and direct interest over the outcome of the controversy and is the
proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the
prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the
validity of any official action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel
Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by
the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and
duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized
and underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute
to the formulation and enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing
of their co-petitioners Courage and Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting that the right to information, curtailed and
violated by E.O. 464, is essential to the effective exercise of other constitutional rights51 and to the maintenance of
the balance of power among the three branches of the government through the principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact
that he is a citizen satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues
raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded
standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that
it is public) 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

party with a more direct and specific interest in raising the questions being raised.54 The first and last determinants
not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have
direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its
petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a
"generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or
threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of
judicial resolution.55 In fine, PDP-Labans alleged interest as a political party does not suffice to clothe it with legal
standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate
to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no showing that President Arroyo has
actually withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim,
merely communicated to the Senate that they have not yet secured the consent of the President, not that the
President prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing
on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was
based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will
abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance
of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O.
464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings
of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the
present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain
from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as
the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:
SECTION 21. 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. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests
the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in
1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy,
was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish
Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with
process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended
to affect or change; and where the legislative body does not itself possess the requisite information which is not
infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for
such information are often unavailing, and also that information which is volunteered is not always accurate or
complete; so some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis and underscoring
supplied)
That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows
that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers
whose positions it is within the power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold
that the power of inquiry does not extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation
on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be
respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even
if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting
in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In
such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these
abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order,
it being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege
is crucial for determining the constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the

1986 Constitution.63 Being of American origin, it is best understood in light of how it has been defined and used in
the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the
courts, and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive
branch officers to withhold information from Congress, the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67
Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any
of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose
the identity of persons who furnish information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents
reflecting advisory opinions, recommendations and deliberations comprising part of a process by which
governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of
information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive had a right to withhold documents that
might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold information related to pending
investigations. x x x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the
doctrine.
This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure
requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge
of highly important executive responsibilities involved in maintaining governmental operations, and extends not only
to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive
domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary
in intra-governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the traditional privileges, but also whether
that privilege should be honored in a given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that
case was the validity of President Nixons claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of
privilege was based on the Presidents general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the
U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a Presidents
powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to
clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional
demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent
assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to turn
over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the
issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the
same year as Nixon, recognized the Presidents privilege over his conversations against a congressional
subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of

Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the
subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77
Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the
Nixon decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy
of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in
the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of the people to information.78 Nonetheless, the Court
recognized that there are certain types of information which the government may withhold from the public, thus
acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a
"governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and
other national security matters."80 The same case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to
matters recognized as "privileged information under the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting national security, and information on investigations
of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to
information.
From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege
is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the
context in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to
disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the
exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the
President prior to appearing before Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any
official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not
made to depend on the department heads possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at
all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House shall provide, appear before and be heard by such House
on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or
the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations
shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the
public interest so requires and the President so states in writing, the appearance shall be conducted in executive

session.
Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section
22 which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of
the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions
of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed
that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or
before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the
Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa
one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come
and it is a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet
ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22]
does not mean that they need not come when they are invited or subpoenaed by the committee of either House
when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez,
that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the
Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for
that matter, may be summoned and if he refuses, he can be held in contempt of the House.83 (Emphasis and
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of
department heads discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely
in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in
the original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the
following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding
Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner
Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.

|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead
of putting it as Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section
21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a
Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid
of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to
or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential
not only in the application of check and balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In
other words, we are accepting that and so this Section 31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from
the same assumption that these provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davides only concern was that the two provisions on
these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner
considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner
Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct
functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the
Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and
the operation of the government,85 corresponding to what is known in Britain as the question period. There was a
specific provision for a question hour in the 1973 Constitution86 which made the appearance of ministers mandatory.
The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are
also members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister
and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure
of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet
remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is
lost the Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in
the present Constitution so as to conform more fully to a system of separation of powers.88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary
system. That department heads may not be required to appear in a question hour does not, however, mean that the
legislature is rendered powerless to elicit information from them in all circumstances. In fact, in light of the absence
of a mandatory question period, the need to enforce Congress right to executive information in the performance of
its legislative function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress
has the right to obtain information from any source even from officials of departments and agencies in the
executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as
that in Britain, a clear separation between the legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the executive so essential, if the functions of the Congress
as the elected representatives of the people are adequately to be carried out. The absence of close rapport between
the legislative and executive branches in this country, comparable to those which exist under a parliamentary
system, and the nonexistence in the Congress of an institution such as the British question period have perforce
made reliance by the Congress upon its right to obtain information from the executive essential, if it is intelligently to
perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of
oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since
it depends for its effectiveness solely upon information parceled out ex gratia by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the
power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight
function.
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has
issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in
keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is
mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is
performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the

Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its
demands for information.
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom
is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power the President on whom executive power is vested, hence,
beyond the reach of Congress except through the power of impeachment. It is based on her being the highest
official of the executive branch, and the due respect accorded to a co-equal branch of government which is
sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This
point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to
pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any
reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of
department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is
dictated by the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will
render it constitutional.
The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the
question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department
heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials
of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the
judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the President. Given the title of Section
2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis,
the determination by the President under this provision is intended to be based on a similar finding of coverage
under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers
persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege,
the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying
that the person is in possession of information which is, in the judgment of the head of office concerned, privileged
as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or by the President that an official is "covered by the
executive privilege," such official is subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned
unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing
more than that the President may reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the
President under E.O. 464, or by the President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis for the officials not showing up in the
legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be
construed as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such determination.
Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that
the information is being withheld by the executive branch, by authority of the President, on the basis of executive
privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the
North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the
Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the
President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of
Separation Of Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public
Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes".
Said officials have not secured the required consent from the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor
does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the
hearing.
Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited
officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the President, that the invited official possesses
information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination
has been made, the same must be deemed implied. Respecting the statement that the invited officials have not
secured the consent of the President, it only means that the President has not reversed the standing prohibition
against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information required
by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the
separation of powers. The information does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate
courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments,
free from the glare of publicity and pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in
the instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation
of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door
Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege

under the challenged order, Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in
the phrase "confidential or classified information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the requested information privileged. It does
not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that
the President has not overturned that determination. Such declaration leaves Congress in the dark on how the
requested information could be classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal consideration by that officer. The court itself
must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a
disclosure of the very thing the privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it
should be respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted
against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby
preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims
of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its
objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has
not shown nor even alleged that those who evaluated claimants product were involved in internal policymaking,
generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which
the privilege is based must be established. To find these interrogatories objectionable, this Court would have to
assume that the evaluation and classification of claimants products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain
reasons for preserving the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation and description of the documents
within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the
affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of
the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim
was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case
because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability.
To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these
documents from outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring
supplied)
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly
stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these
questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the
records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas
issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a
statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other
appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or remedy
is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was
"a patent evasion of the duty of one summoned to produce papers before a congressional committee[, and] cannot
be condoned." (Emphasis and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the reasons for the claim with such
particularity as to compel disclosure of the information which the privilege is meant to protect.103 A useful analogy in
determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v.
U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in so doing he would incriminate
himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his
silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the
witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the very protection which the privilege is
designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted.
It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464,
coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress
to determine whether the withholding of information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of
office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation
of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
the United States where, so it claims, only the President can assert executive privilege to withhold information from
Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the Presidents authority and has the effect of
prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege,
as already discussed, is recognized with respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive branch,105 or in those instances where exemption
from disclosure is necessary to the discharge of highly important executive responsibilities.106 The doctrine of
executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to
disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public
interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power
to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in
which case the Executive Secretary must state that the authority is "By order of the President," which means that he
personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest
official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need
to ensure respect for such officials does not change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters
of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is
not merely the legislative power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power
of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen
for the production of documents pursuant to his right to information does not have the same obligatory force as a
subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact
testimony from government officials. These powers belong only to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly
qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The
citizens are thereby denied access to information which they can use in formulating their own opinions on the matter
before Congress opinions which they can then communicate to their representatives and other government
officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the
extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating thereto can such bear fruit.107
(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the
need for publication. On the need for publishing even those statutes that do not directly apply to people in general,
Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It
surely cannot be said that such a law does not affect the public although it unquestionably does not apply directly to
all the people. The subject of such law is a matter of public interest which any member of the body politic may
question in the political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring
supplied)
Although the above statement was made in reference to statutes, logic dictates that the challenged order must be

covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people
to information on matters of public concern. It is, therefore, a matter of public interest which members of the body
politic may question before this Court. Due process thus requires that the people should have been apprised of this
issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it
and state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for
information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.
That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the
divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of
popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much greater value our right as a people to
take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of
2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under
the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(ON LEAVE)
REYNATO S. PUNO
Associate Justice

CONSUELO YNARES- SANTIAGO

Asscociate Justice

LEONARDO A. QUISUMBING
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Asscociate Justice

ROMEO J. CALLEJO, SR.

Associate Justice

DANTE O. TINGA
Asscociate Justice

MINITA V. CHICO-NAZARIO

CANCIO C. GARCIA

KILUSANG MAYO UNO,

NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU),
JOSELITO V. USTAREZ,
EMILIA P. DAPULANG,
SALVADOR T. CARRANZA,
MARTIN T. CUSTODIO, JR. and
ROQUE M. TAN,
Petitioners,
- versus -

G.R. No. 167798

EN BANC

THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC
DEVELOPMENT AUTHORITY,
and THE SECRETARY,
DEPARTMENT OF BUDGET and
MANAGEMENT,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
BAYAN MUNA Representatives G.R. No. 167930
SATUR C. OCAMPO, TEODORO
A. CASIO, and JOEL G. VIRADOR, Present:
GABRIELA WOMENS PARTY
Representative LIZA L. MAZA, PANGANIBAN, C.J.,
ANAKPAWIS Representatives PUNO,
RAFAEL V. MARIANO QUISUMBING,
and CRISPIN B. BELTRAN, YNARES-SANTIAGO,
Rep. FRANCIS G. ESCUDERO, SANDOVAL-GUTIERREZ,
Rep. EDUARDO C. ZIALCITA, CARPIO,
Rep. LORENZO R. TAADA III, AUSTRIA-MARTINEZ,
DR. CAROL PAGADUAN-ARAULLO CORONA,
and RENATO M. REYES, JR. CARPIO-MORALES,

of BAYAN, MARIE HILAO-ENRIQUEZ CALLEJO, SR.,

of KARAPATAN, ANTONIO L. TINIO AZCUNA,
of ACT, FERDINAND GAITE TINGA,
of COURAGE, GIOVANNI A. TAPANG CHICO-NAZARIO,
of AGHAM, WILFREDO MARBELLA GARCIA, and
of KMP, LANA LINABAN of GABRIELA, VELASCO, Jr., JJ.
AMADO GAT INCIONG,
RENATO CONSTANTINO, JR.,
DEAN PACIFICO H. AGABIN,
SHARON R. DUREMDES of the
NATIONAL COUNCIL OF CHURCHES
IN THE PHILIPPINES, and
BRO. EDMUNDO L. FERNANDEZ (FSC)
of the ASSOCIATION OF MAJOR
RELIGIOUS SUPERIORS OF THE
PHILIPPINES (AMRSP),
Petitioners,
- versus -

DECISION

EDUARDO ERMITA, in his capacity as

Executive Secretary, ROMULO NERI,
in his capacity as Director-General
of the NATIONAL ECONOMIC and
DEVELOPMENT AUTHORITY (NEDA)
and the Administrator of the Promulgated:
NATIONAL STATISTICS OFFICE (NSO),
Respondents. April 19, 2006
x-----------------------------------------------------x

CARPIO, J.:

This case involves two consolidated petitions for certiorari, prohibition, and mandamus under
Rule 65 of the Rules of Court, seeking the nullification of Executive Order No. 420 (EO 420) on
the ground that it is unconstitutional.

EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005, reads:

REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-OWNED AND

CONTROLLED CORPORATIONS TO STREAMLINE AND HARMONIZE THEIR
IDENTIFICATION (ID) SYSTEMS, AND AUTHORIZING FOR SUCH PURPOSE THE
DIRECTOR-GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY
TO IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have created
unnecessary and costly redundancies and higher costs to government, while making it inconvenient
for individuals to be holding several identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes and issuance of
identification cards in government to reduce costs and to provide greater convenience for those
transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses, enhance the
integrity and reliability of government-issued identification cards in private transactions, and prevent
violations of laws involving false names and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic
of the Philippines by virtue of the powers vested in me by law, do hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for government.
All government agencies, including government-owned and controlled corporations, are hereby
directed to adopt a unified multi-purpose ID system to ensure the attainment of the following
objectives:
a. To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of
redundant database containing the same or related information;

c.

To enhance the integrity and reliability of government-issued ID cards; and

To facilitate private businesses and promote the wider use of the unified ID card as
provided under this executive order;

b. To ensure greater convenience for those transacting business with the government and
those availing of government services;

d.

e. To facilitate access to and delivery of quality and effective government service.

Section 2. Coverage All government agencies and government-owned and controlled
corporations issuing ID cards to their members or constituents shall be covered by this executive
order.
Section 3. Data requirement for the unified ID system The data to be collected and recorded
by the participating agencies shall be limited to the following:
Name
Home Address
Sex
Picture
Signature
Date of Birth

Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency and a common reference number shall
form part of the stored ID data and, together with at least the first five items listed above, including the print of the
right thumbmark, or any of the fingerprints as collected and stored, shall appear on the face or back of the ID card
for visual verification purposes.

Section 4. Authorizing the Director-General, National Economic and Development

Authority, to Harmonize All Government Identification Systems. The Director-General, National
Economic Development Authority, is hereby authorized to streamline and harmonize all government
ID systems.

Section 5. Functions and responsibilities of the Director-General, National Economic and

Development Authority. In addition to his organic functions and responsibilities, the DirectorGeneral, National Economic and Development Authority, shall have the following functions and
responsibilities:

b.

Enter into agreements with local governments, through their respective leagues of
governors or mayors, the Commission on Elections (COMELEC), and with other
branches or instrumentalities of the government, for the purpose of ensuring
government-wide adoption of and support to this effort to streamline the ID systems
in government;

a. Adopt within sixty (60) days from the effectivity of this executive order a unified
government ID system containing only such data and features, as indicated in Section
3 above, to validly establish the identity of the card holder:

b.

Call on any other government agency or institution, or create subcommittees or

technical working groups, to provide such assistance as may be necessary or required
for the effective performance of its functions; and

d. Promulgate such rules or regulations as may be necessary in pursuance of the objectives of

this executive order.

Section 6. Safeguards. The Director-General, National Economic and Development

Authority, and the pertinent agencies shall adopt such safeguard as may be necessary and adequate to
ensure that the right to privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:

a. The data to be recorded and stored, which shall be used only for purposes of establishing
the identity of a person, shall be limited to those specified in Section 3 of this
executive order;

b. In no case shall the collection or compilation of other data in violation of a persons right to
privacy shall be allowed or tolerated under this order;

c. Stringent systems of access control to data in the identification system shall be instituted;

d. Data collected and stored for this purpose shall be kept and treated as strictly confidential

and a personal or written authorization of the Owner shall be required for access and
disclosure of data;
e. The identification card to be issued shall be protected by advanced security features and
cryptographic technology; and
f. A written request by the Owner of the identification card shall be required for any
correction or revision of relevant data, or under such conditions as the participating
agency issuing the identification card shall prescribe.
Section 7. Funding. Such funds as may be recommended by the Department of Budget and
Management shall be provided to carry out the objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or portions thereof, which are
inconsistent with this executive order, are hereby revoked, amended or modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen (15) days after its
publication in two (2) newspapers of general circulation.

DONE in the City of Manila, this 13th day of April, in the year of Our Lord, Two Thousand
and Five.

Thus, under EO 420, the President directs all government agencies and government-owned
and controlled corporations to adopt a uniform data collection and format for their existing
identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional because it constitutes
usurpation of legislative functions by the executive branch of the government. Furthermore, they
[1]
allege that EO 420 infringes on the citizens right to privacy.

Petitioners in G.R. No. 167930 allege that EO 420 is void based on the following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the decision of this Honorable
Court in Ople v. Torres et al., G.R. No. 127685, July 23, 1998. It also violates RA 8282
otherwise known as the Social Security Act of 1997.

EO 420 is vague and without adequate safeguards or penalties for any violation
of its provisions.

EO 420 violates the constitutional provisions on the right to privacy

(i) It allows access to personal confidential data without the owners consent.

2. The Executive has usurped the legislative power of Congress as she has no power to issue EO
420. Furthermore, the implementation of the EO will use public funds not appropriated by
Congress for that purpose.
3.

(ii)

(iii) There are no compelling reasons that will legitimize the necessity of EO 420.

4. Granting without conceding that the President may issue EO 420, the Executive Order was issued
without public hearing.
5. EO 420 violates the Constitutional provision on equal protection of laws and results in the
[2]
discriminatory treatment of and penalizes those without ID.

Issues

Essentially, the petitions raise two issues. First, petitioners claim that EO 420 is a
usurpation of legislative power by the President. Second, petitioners claim that EO 420 infringes
on the citizens right to privacy.

The Courts Ruling

Respondents question the legal standing of petitioners and the ripeness of the petitions.
Even assuming that petitioners are bereft of legal standing, the Court considers the issues raised
under the circumstances of paramount public concern or of transcendental significance to the
people. The petitions also present a justiciable controversy ripe for judicial determination because
all government entities currently issuing identification cards are mandated to implement EO 420,
which petitioners claim is patently unconstitutional. Hence, the Court takes cognizance of the
petitions.

The petitions are without merit.

On the Alleged Usurpation of Legislative Power

Section 2 of EO 420 provides, Coverage. All government agencies and government-owned and
controlled corporations issuing ID cards to their members or constituents shall be covered by this
executive order. EO 420 applies only to government entities that issue ID cards as part of
their functions under existing laws. These government entities have already been issuing ID
[3]
[4]
cards even prior to EO 420. Examples of these government entities are the GSIS,
SSS,
[5]
[6]
[7]
[8]
Philhealth, Mayors Office, LTO, PRC, and similar government entities.
Section 1 of EO 420 directs these government entities to adopt a unified multi-purpose ID

d.

c.

b.

a.

To facilitate access to and delivery of quality and effective government service.

To facilitate private businesses and promote the wider use of the unified ID card as provided
under this executive order;
To enhance the integrity and reliability of government-issued ID cards; and

To ensure greater convenience for those transacting business with the government and those
availing of government services;

To reduce costs and thereby lessen the financial burden on both the government and the
public brought about by the use of multiple ID cards and the maintenance of redundant
database containing the same or related information;

system. Thus, all government entities that issue IDs as part of their functions under existing laws
are required to adopt a uniform data collection and format for their IDs. Section 1 of EO 420
enumerates the purposes of the uniform data collection and format, namely:

e.

In short, the purposes of the uniform ID data collection and ID format are to reduce costs,
achieve efficiency and reliability, insure compatibility, and provide convenience to the people
served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the uniform ID system to
only 14 specific items, namely: (1) Name; (2) Home Address; (3) Sex; (4) Picture; (5) Signature;
(6) Date of Birth; (7) Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11)
Weight; (12) Two index fingers and two thumbmarks; (13) Any prominent distinguishing features
like moles or others; and (14) Tax Identification Number.
These limited and specific data are the usual data required for personal identification by
government entities, and even by the private sector. Any one who applies for or renews a drivers
license provides to the LTO all these 14 specific data.
At present, government entities like LTO require considerably more data from applicants
for identification purposes. EO 420 will reduce the data required to be collected and recorded
in the ID databases of the government entities. Government entities cannot collect or record
data, for identification purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record data for their ID
systems, either expressly or impliedly by the nature of the functions of these government entities.
Under their existing ID systems, some government entities collect and record more data than

what EO 420 allows. At present, the data collected and recorded by government entities are
disparate, and the IDs they issue are dissimilar.

[9]
In the case of the Supreme Court,
the IDs that the Court issues to all its employees,
including the Justices, contain 15 specific data, namely: (1) Name; (2) Picture; (3) Position; (4)
Office Code Number; (5) ID Number; (6) Height; (7) Weight; (8) Complexion; (9) Color of Hair;
(10) Blood Type; (11) Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy
Number; (14) Name and Address of Person to be Notified in Case of Emergency; and (15)
Signature. If we consider that the picture in the ID can generally also show the sex of the
employee, the Courts ID actually contains 16 data.

In contrast, the uniform ID format under Section 3 of EO 420 requires only the first five
items listed in Section 3, plus the fingerprint, agency number and the common reference number,
or only eight specific data. Thus, at present, the Supreme Courts ID contains far more data than
the proposed uniform ID for government entities under EO 420. The nature of the data contained
in the Supreme Court ID is also far more financially sensitive, specifically the Tax Identification
Number.

Making the data collection and recording of government entities unified, and making their
ID formats uniform, will admittedly achieve substantial benefits. These benefits are savings in
terms of procurement of equipment and supplies, compatibility in systems as to hardware and
software, ease of verification and thus increased reliability of data, and the user-friendliness of a
single ID format for all government entities.
There is no dispute that government entities can individually limit the collection and
recording of their data to the 14 specific items in Section 3 of EO 420. There is also no dispute
that these government entities can individually adopt the ID format as specified in Section 3 of
EO 420. Such an act is certainly within the authority of the heads or governing boards of the
government entities that are already authorized under existing laws to issue IDs.

A unified ID system for all these government entities can be achieved in either of two
ways. First, the heads of these existing government entities can enter into a memorandum of
agreement making their systems uniform. If the government entities can individually adopt a
format for their own ID pursuant to their regular functions under existing laws, they can also
adopt by mutual agreement a uniform ID format, especially if the uniform format will result in

substantial savings, greater efficiency, and optimum compatibility. This is purely an

administrative matter, and does not involve the exercise of legislative power.
Second, the President may by executive or administrative order direct the government
entities under the Executive department to adopt a uniform ID data collection and format. Section
17, Article VII of the 1987 Constitution provides that the President shall have control of all
executive departments, bureaus and offices. The same Section also mandates the President to
ensure that the laws be faithfully executed.
Certainly, under this constitutional power of control the President can direct all government
entities, in the exercise of their functions under existing laws, to adopt a uniform ID data
collection and ID format to achieve savings, efficiency, reliability, compatibility, and convenience
to the public. The Presidents constitutional power of control is self-executing and does not need
any implementing legislation.
Of course, the Presidents power of control is limited to the Executive branch of
government and does not extend to the Judiciary or to the independent constitutional
commissions. Thus, EO 420 does not apply to the Judiciary, or to the COMELEC which under
[10]
existing laws is also authorized to issue voters ID cards.
This only shows that EO 420 does
not establish a national ID system because legislation is needed to establish a single ID system
that is compulsory for all branches of government.
The Constitution also mandates the President to ensure that the laws are faithfully
executed. There are several laws mandating government entities to reduce costs, increase
[11]
efficiency, and in general, improve public services.
The adoption of a uniform ID data
collection and format under EO 420 is designed to reduce costs, increase efficiency, and in
general, improve public services. Thus, in issuing EO 420, the President is simply performing the
constitutional duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to promulgate. The
President has not usurped legislative power in issuing EO 420. EO 420 is an exercise of
Executive power the Presidents constitutional power of control over the Executive department.
EO 420 is also compliance by the President of the constitutional duty to ensure that the laws are
faithfully executed.

Legislative power is the authority to make laws and to alter or repeal them. In issuing EO
420, the President did not make, alter or repeal any law but merely implemented and executed
existing laws. EO 420 reduces costs, as well as insures efficiency, reliability, compatibility and
user-friendliness in the implementation of current ID systems of government entities under
existing laws. Thus, EO 420 is simply an executive issuance and not an act of legislation.

The act of issuing ID cards and collecting the necessary personal data for imprinting on the
ID card does not require legislation. Private employers routinely issue ID cards to their
employees. Private and public schools also routinely issue ID cards to their students. Even private
clubs and associations issue ID cards to their members. The purpose of all these ID cards is
simply to insure the proper identification of a person as an employee, student, or member of a
club. These ID cards, although imposed as a condition for exercising a privilege, are voluntary
because a person is not compelled to be an employee, student or member of a club.

What require legislation are three aspects of a government maintained ID card system.
First, when the implementation of an ID card system requires a special appropriation because
there is no existing appropriation for such purpose. Second, when the ID card system is
compulsory on all branches of government, including the independent constitutional
commissions, as well as compulsory on all citizens whether they have a use for the ID card or
not. Third, when the ID card system requires the collection and recording of personal data beyond
what is routinely or usually required for such purpose, such that the citizens right to privacy is
infringed.
In the present case, EO 420 does not require any special appropriation because the existing
ID card systems of government entities covered by EO 420 have the proper appropriation or
funding. EO 420 is not compulsory on all branches of government and is not compulsory on all
citizens. EO 420 requires a very narrow and focused collection and recording of personal data
while safeguarding the confidentiality of such data. In fact, the data collected and recorded under
EO 420 are far less than the data collected and recorded under the ID systems existing prior to
EO 420.

EO 420 does not establish a national ID card system. EO 420 does not compel all
citizens to have an ID card. EO 420 applies only to government entities that under existing laws
are already collecting data and issuing ID cards as part of their governmental functions. Every
government entity that presently issues an ID card will still issue its own ID card under its
own name. The only difference is that the ID card will contain only the five data specified in

Section 3 of EO 420, plus the fingerprint, the agency ID number, and the common reference
number which is needed for cross-verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive department should
undertake cost savings, achieve efficiency in operations, insure compatibility of equipment and
systems, and provide user-friendly service to the public. The collection of ID data and issuance of
ID cards are day-to-day functions of many government entities under existing laws. Even the
Supreme Court has its own ID system for employees of the Court and all first and second level
courts. The Court is even trying to unify its ID system with those of the appellate courts, namely
the Court of Appeals, Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts within the
Judiciary. The same is true for government entities under the Executive department. If
government entities under the Executive department decide to unify their existing ID data
collection and ID card issuance systems to achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise of any legislative power. Thus, the issuance
of EO 420 does not constitute usurpation of legislative power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government entities have been issuing
ID cards in the performance of their governmental functions. There have been no complaints
from citizens that the ID cards of these government entities violate their right to privacy. There
have also been no complaints of abuse by these government entities in the collection and
recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID systems of government entities
prior to EO 420 violate their right to privacy. Since petitioners do not make such claim, they even
have less basis to complain against the unified ID system under EO 420. The data collected and
stored for the unified ID system under EO 420 will be limited to only 14 specific data, and the ID
card itself will show only eight specific data. The data collection, recording and ID card system
under EO 420 will even require less data collected, stored and revealed than under the disparate
systems prior to EO 420.
Prior to EO 420, government entities had a free hand in determining the kind, nature and extent
of data to be collected and stored for their ID systems. Under EO 420, government entities can
collect and record only the 14 specific data mentioned in Section 3 of EO 420. In addition,

government entities can show in their ID cards only eight of these specific data, seven less data
than what the Supreme Courts ID shows.

e.

d.

c.

b.

a.

The identification card to be issued shall be protected by advanced security features and
cryptographic technology;

Data collected and stored for this purpose shall be kept and treated as strictly confidential
and a personal or written authorization of the Owner shall be required for access and
disclosure of data;

Stringent systems of access control to data in the identification system shall be instituted;

In no case shall the collection or compilation of other data in violation of a persons right to
privacy be allowed or tolerated under this order;

The data to be recorded and stored, which shall be used only for purposes of establishing the
identity of a person, shall be limited to those specified in Section 3 of this executive order;

Also, prior to EO 420, there was no executive issuance to government entities prescribing
safeguards on the collection, recording, and disclosure of personal identification data to protect
the right to privacy. Now, under Section 5 of EO 420, the following safeguards are instituted:

f.

A written request by the Owner of the identification card shall be required for any correction
or revision of relevant data, or under such conditions as the participating agency issuing the
identification card shall prescribe.

On its face, EO 420 shows no constitutional infirmity because it even narrowly limits the
data that can be collected, recorded and shown compared to the existing ID systems of
government entities. EO 420 further provides strict safeguards to protect the confidentiality of the
data collected, in contrast to the prior ID systems which are bereft of strict administrative
safeguards.

The right to privacy does not bar the adoption of reasonable ID systems by government
entities. Some one hundred countries have compulsory national ID systems, including
democracies such as Spain, France, Germany, Belgium, Greece, Luxembourg, and Portugal.
Other countries which do not have national ID systems, like the United States, Canada, Australia,
New Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for health, social or
[12]
other public services.
Even with EO 420, the Philippines will still fall under the countries that
do not have compulsory national ID systems but allow only sectoral cards for social security,
health services, and other specific purposes.

Without a reliable ID system, government entities like GSIS, SSS, Philhealth, and LTO
cannot perform effectively and efficiently their mandated functions under existing laws. Without
a reliable ID system, GSIS, SSS, Philhealth and similar government entities stand to suffer
substantial losses arising from false names and identities. The integrity of the LTOs licensing
system will suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy, namely,
[13]
Griswold v. Connecticut,
U.S. Justice Department v. Reporters Committee for Freedom of the
[14]
[15]
Press,
and Whalen v. Roe.
The last two decisions actually support the validity of EO 420,
while the first is inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law that prohibited
the use and distribution of contraceptives because enforcement of the law would allow the police
entry into the bedrooms of married couples. Declared the U.S. Supreme Court: Would we allow
the police to search the sacred precincts of the marital bedrooms for telltale signs of the use of
contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship. Because the facts and the issue involved in Griswold are materially different from
the present case, Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect and store
information on individuals from public records nationwide but whether the State could withhold
such information from the press. The premise of the issue in U.S. Justice Department is that
the State can collect and store in a central database information on citizens gathered from
public records across the country. In fact, the law authorized the Department of Justice to
collect and preserve fingerprints and other criminal identification records nationwide. The law
also authorized the Department of Justice to exchange such information with officials of States,
cities and other institutions. The Department of Justice treated such information as confidential.
A CBS news correspondent and the Reporters Committee demanded the criminal records of four
members of a family pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled
that the Freedom of Information Act expressly exempts release of information that would
constitute an unwarranted invasion of personal privacy, and the information demanded falls under
that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal data collected

and recorded under EO 420 are treated as strictly confidential under Section 6(d) of EO 420.
These data are not only strictly confidential but also personal matters. Section 7, Article III of
the 1987 Constitution grants the right of the people to information on matters of public concern.
Personal matters are exempt or outside the coverage of the peoples right to information on
matters of public concern. The data treated as strictly confidential under EO 420 being private
matters and not matters of public concern, these data cannot be released to the public or the press.
Thus, the ruling in U.S. Justice Department does not collide with EO 420 but actually supports
the validity EO 420.

Whalen v. Roe is the leading American case on the constitutional protection for control
over information. In Whalen, the U.S. Supreme Court upheld the validity of a New York law
that required doctors to furnish the government reports identifying patients who received
prescription drugs that have a potential for abuse. The government maintained a central
computerized database containing the names and addresses of the patients, as well as the
identity of the prescribing doctors. The law was assailed because the database allegedly infringed
the right to privacy of individuals who want to keep their personal matters confidential. The U.S.
Supreme Court rejected the privacy claim, and declared:

Disclosures of private medical information to doctors, to hospital personnel, to insurance companies,

and to public health agencies are often an essential part of modern medical practice even when the
disclosure may reflect unfavorably on the character of the patient. Requiring such disclosures to
representatives of the State having responsibility for the health of the community does not
automatically amount to an impermissible invasion of privacy. (Emphasis supplied)

Compared to the personal medical data required for disclosure to the New York State in Whalen,
the 14 specific data required for disclosure to the Philippine government under EO 420 are far
less sensitive and far less personal. In fact, the 14 specific data required under EO 420 are routine
data for ID systems, unlike the sensitive and potentially embarrassing medical records of patients
taking prescription drugs. Whalen, therefore, carries persuasive force for upholding the
constitutionality of EO 420 as non-violative of the right to privacy.

Subsequent U.S. Supreme Court decisions have reiterated Whalen. In Planned Parenthood
[16]
of Central Missouri v. Danforth,
the U.S. Supreme Court upheld the validity of a law that
required doctors performing abortions to fill up forms, maintain records for seven years, and

allow the inspection of such records by public health officials. The U.S. Supreme Court ruled that
recordkeeping and reporting requirements that are reasonably directed to the preservation of
maternal health and that properly respect a patients confidentiality and privacy are permissible.
[17]
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,
the U.S.
Supreme Court upheld a law that required doctors performing an abortion to file a report to the
government that included the doctors name, the womans age, the number of prior pregnancies
and abortions that the woman had, the medical complications from the abortion, the weight of the
fetus, and the marital status of the woman. In case of state-funded institutions, the law made such
information publicly available. In Casey, the U.S. Supreme Court stated: The collection of
information with respect to actual patients is a vital element of medical research, and so it cannot
be said that the requirements serve no purpose other than to make abortion more difficult.
Compared to the disclosure requirements of personal data that the U.S. Supreme Court
have upheld in Whalen, Danforth and Casey as not violative of the right to privacy, the disclosure
requirements under EO 420 are far benign and cannot therefore constitute violation of the right to
privacy. EO 420 requires disclosure of 14 personal data that are routine for ID purposes, data that
cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy. Petitioners
cannot show such violation by a mere facial examination of EO 420 because EO 420 narrowly
draws the data collection, recording and exhibition while prescribing comprehensive safeguards.
[18]
Ople v. Torres
is not authority to hold that EO 420 violates the right to privacy because in that
case the assailed executive issuance, broadly drawn and devoid of safeguards, was annulled
solely on the ground that the subject matter required legislation. As then Associate Justice, now
Chief Justice Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, The
voting is decisive only on the need for appropriate legislation, and it is only on this ground that
the petition is granted by this Court.
EO 420 applies only to government entities that already maintain ID systems and issue ID
cards pursuant to their regular functions under existing laws. EO 420 does not grant such
government entities any power that they do not already possess under existing laws. In contrast,
the assailed executive issuance in Ople v. Torres sought to establish a National Computerized

[19]
Identification Reference System,
a national ID system that did not exist prior to the assailed
executive issuance. Obviously, a national ID card system requires legislation because it creates a
new national data collection and card issuance system where none existed before.

ANGELINA SANDOVALGUTIERREZ
Associate Justice

LEONARDO A. QUISUMBING
Associate Justice

ARTEMIO V. PANGANIBAN
Chief Justice

In the present case, EO 420 does not establish a national ID system but makes the existing
sectoral card systems of government entities like GSIS, SSS, Philhealth and LTO less costly,
more efficient, reliable and user-friendly to the public. Hence, EO 420 is a proper subject of
executive issuance under the Presidents constitutional power of control over government entities
in the Executive department, as well as under the Presidents constitutional duty to ensure that
laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is declared
VALID.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

(On leave)
REYNATO S. PUNO
Associate Justice

CONSUELO YNARESSANTIAGO
Associate Justice

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
A.M. No. P-08-2535
June 23, 2010
(Formerly A.M. OCA IPI No. 04- 2022-P and A.M. No. 04-434-RTC)
OFFICE OF THE COURT ADMINISTRATOR, Complainant,
vs.
FLORENCIO M. REYES,1 Officer-in-Charge, and RENE DE GUZMAN, Clerk, Regional Trial Court, Branch 31,
Guimba, Nueva Ecija, Respondents.
DECISION
Per curiam:*
This complaint for gross misconduct against Rene de Guzman (De Guzman), Clerk, Regional Trial Court (RTC) of
Guimba, Nueva Ecija, Branch 31, is an offshoot of the complaint filed by Atty. Hugo B. Sansano, Jr. (Atty. Sansano)
relative to the alleged incompetence/inefficiency of the RTC of Guimba, Nueva Ecija, Branch 31, in the transmittal of
the records of Criminal Case No. 1144-G2 to the Court of Appeals.
In our Resolution dated September 17, 2007, we adopted the findings and recommendation of the Office of the
Court Administrator (OCA) declaring as closed and terminated the administrative matter relative to the delay in the
transmittal of the records of Criminal Case No. 1144-G, and exonerating De Guzman and Florencio M. Reyes
(Reyes), the Officer-in-Charge of the RTC of Guimba, Nueva Ecija, Branch 31.
However, in the same Resolution, we also required De Guzman to comment on the allegation that he is using illegal
drugs and had been manifesting irrational and queer behavior while at work. According to Reyes, De Guzmans
manifestations of absurd behavior prompted Judge Napoleon R. Sta. Romana (Judge Sta. Romana) to request the
Philippine National Police Crime Laboratory to perform a drug test on De Guzman. As alleged by Reyes:
x x x Mr. Rene de Guzman, the Docket Clerk, was [in] charge of the preparation and transmission of the records on
appeal x x x. Nonetheless, x x x Judge Sta. Romana would x x x often x x x [remind him] about the transmittal of
records of the appealed cases [for more than] a dozen times, even personally confronting Mr. Rene de Guzman
about the matter, x x x though unsuccessfully x x x. Mr. De Guzman would just x x x dismiss the subject in ridicule
and with the empty assurance that the task is as good as finished and what x x x need[s] to be done [is] simply
retyping of the corrected indices or the like and that he would submit the same in [no] time at all. This was after a
number of weeks from March 26, 2003 after Mr. De Guzman made the undersigned sign the transmittal of PP v.
Manangan which he allegedly did not transmit before owing to some minor corrections in the indexing. All too often,
(it seems to have been customary on his part, for this he would do to other pressing assignment) he would come to
the office the next day, jubilant that the problem has been solved at last! But to no avail. This attitude seemingly
bordering on the irrational if not to say that a sense of responsibility is utterly lacking may have given cue for Judge
Sta. Romana to have Mr. De Guzman undergo a drug test x x x.3
That Mr. De Guzman could brush aside even the personal importuning by the judge is a fete no other of our coemployees dare emulate. On the contrary, everybody is apprehensive for his well being and in his behalf. x x x
On May 24, 2004, Judge Sta. Romana requested the Nueva Ecija Provincial Crime Laboratory Office to conduct a
drug test on De Guzman. On May 26, 2004, De Guzman underwent a qualitative examination the results of which
yielded positive for Tetrahydrocannabinol metabolites (marijuana) and Methamphetamine (shabu), both dangerous
drugs.
In our Resolution of September 17, 2007, we required De Guzman to submit his comment on the charge of
misconduct relative to the alleged use of prohibited drugs within 10 days from notice. Notwithstanding the Courts

directive, De Guzman failed to file his Comment. Thus, on January 23, 2008, we directed De Guzman to show
cause why he should not be held in contempt for failure to comply with the September 17, 2007 Resolution. At the
same time, we resolved to require him to submit his comment within 10 days from notice.
De Guzman complied with our directive only on March 12, 2008. In his letter, De Guzman claimed that he failed to
comply with the Courts directive because he lost his copy of the September 17, 2007 Resolution.
Treating De Guzmans letter as his Comment, we referred the same to the OCA for evaluation, report and
recommendation. The OCA submitted its Report and Recommendation on July 23, 2008 which reads in part:
xxxx
Noticeably, respondent de Guzman did not challenge the authenticity and validity of the chemistry report of the
Nueva Ecija Provincial Crime Laboratory Office which found him positive for "marijuana" and "shabu". He did not
also promptly submit another test report or other document to controvert the drug test report. His plain refutation of
the charge and his willingness to submit himself now to a drug test are token attempts at candor and assertion of
innocence. These perfunctory attempts cannot prevail over the solitary yet compelling evidence of misconduct for
use of prohibited drugs.
Relative to respondents delay in filing his comment to the charge of misconduct, his claim that he "lost and
misplaced (his) copy of said resolution, and for that (he) almost forgot about it" is neither a valid reason nor an
excuse for the delay in complying with the order of the Court. His flippant attitude towards the repeated orders of the
Court to explain his conduct does not merit consideration and justification for delay.
It is settled that respondents "indifference to [the resolutions] requiring him to comment on the accusation(s) in the
complaint thoroughly and substantially is gross misconduct, and may even be considered as outright disrespect to
the Court." After all, a resolution of the Supreme Court is not a mere request and should be complied with promptly
and completely. Such failure to comply accordingly betrays not only a recalcitrant streak in character, but has
likewise been considered as an utter lack of interest to remain with, if not contempt of the judicial system.
It should be mentioned that this is not the first instance that respondent is ordered to account for his failure to
comply with a court order. Earlier, he was required to explain to the Court his failure to promptly submit a copy of the
affidavit of retired court stenographer Jorge Caoile and to show cause why he should not be administratively dealt
with for his failure to comply with a show cause order.
For failure to overcome the charge of use of prohibited drugs and to satisfactorily explain his failure to submit
promptly his compliance to the Courts show cause order, respondent may be held guilty of two counts of gross
misconduct.
The OCA thus submitted the following recommendations for consideration of the Court viz:
1. The instant matter be RE-DOCKETED as a regular administrative case; and
2. Respondent Rene de Guzman be found guilty of gross misconduct and accordingly be DISMISSED from
the service effective immediately with forfeiture of all benefits except accrued leave credits, with prejudice to
his re-employment in any branch or instrumentality of the government, including government-owned or
controlled agencies, corporations and financial institutions.4
On August 27, 2008, we required De Guzman to manifest within 10 days from receipt whether he is willing to submit
the case for resolution on the basis of the pleadings/records already filed and submitted. As before, De Guzman
simply ignored our directive. Consequently, on September 28, 2009, we deemed waived the filing of De Guzmans
manifestation.
Our Ruling
We adopt the findings and recommendation of the OCA.
We note that De Guzman is adept at ignoring the Courts directives. In his letter-explanation in the administrative
matter relative to the delay in the transmittal of the records of Criminal Case No. 1144-G, he requested for a period
of 10 days or until November 15, 2004 within which to submit the Affidavit of George Caoile (Caoile), the retired
Stenographer, as part of his comment. However, despite the lapse of five months, De Guzman still failed to submit
Caoiles affidavit. Subsequently, we furnished him with a copy of the April 18, 2005 Resolution wherein we
mentioned that we are awaiting his submission of the affidavit of Caoile which shall be considered as part of his (De
Guzmans) comment.

Nine months from the time he undertook to submit the affidavit of Caoile, De Guzman has yet to comply with his
undertaking. Thus, on August 10, 2005, we required De Guzman to show cause why he should not be disciplinarily
dealt with or held in contempt for such failure.
Unfortunately, De Guzman merely ignored our show cause order. Consequently, on November 20, 2006, we
imposed upon him a fine of P1,000.00. Finally, on January 24, 2007, or after the lapse of one year and two months,
De Guzman submitted the affidavit of Caoile.
Similarly, we also required De Guzman to file his comment within 10 days from notice as regards the allegation that
he was using prohibited drugs. However, he again ignored our directive as contained in the Resolution of September
17, 2007. Thus, on January 23, 2008, we required him to show cause why he should not be held in contempt for
such failure. By way of explanation, De Guzman submitted a letter dated March 12, 2008 wherein he claimed that
he failed to file his comment on the charge of miscondouct because he allegedly lost his copy of the said September
17, 2007 Resolution.
Finally, on August 27, 2008, we required De Guzman to manifest whether he is willing to submit the case for
resolution based on the pleadings submitted. As before, he failed to comply with the same.
As correctly observed by the OCA, De Guzman has shown his propensity to defy the directives of this Court.5
However, at this juncture, we are no longer wont to countenance such disrespectful behavior. As we have
categorically declared in Office of the Court Administrator v. Clerk of Court Fe P. Ganzan, MCTC, Jasaan, Claveria,
Misamis Oriental:6
x x x A resolution of the Supreme Court should not be construed as a mere request, and should be complied with
promptly and completely. Such failure to comply betrays, not only a recalcitrant streak in character, but also
disrespect for the lawful order and directive of the Court. Furthermore, this contumacious conduct of refusing to
abide by the lawful directives issued by the Court has likewise been considered as an utter lack of interest to remain
with, if not contempt of, the system. Ganzans transgression is highlighted even more by the fact that she is an
employee of the Judiciary, who, more than an ordinary citizen, should be aware of her duty to obey the orders and
processes of the Supreme Court without delay. x x x
Anent the use of illegal drugs, we have upheld in Social Justice Society (SJS) v. Dangerous Drugs Board7 the
validity and constitutionality of the mandatory but random drug testing of officers and employees of both public and
private offices. As regards public officers and employees, we specifically held that:
Like their counterparts in the private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for
private employees, the more reason that it should pass the test for civil servants, who, by constitutional demand,
are required to be accountable at all times to the people and to serve them with utmost responsibility and
efficiency.8
Parenthetically, in A.M. No. 06-1-01-SC9 dated January 17, 2006, the Court has adopted guidelines for a program to
deter the use of dangerous drugs and institute preventive measures against drug abuse for the purpose of
eliminating the hazards of drug abuse in the Judiciary, particularly in the first and second level courts. The objectives
of the said program are as follows:
1. To detect the use of dangerous drugs among lower court employees, impose disciplinary sanctions, and
provide administrative remedies in cases where an employee is found positive for dangerous drug use.
2. To discourage the use and abuse of dangerous drugs among first and second level court employees and
enhance awareness of their adverse effects by information dissemination and periodic random drug testing.
3. To institute other measures that address the menace of drug abuse within the personnel of the Judiciary.
In the instant administrative matter, De Guzman never challenged the authenticity of the Chemistry Report of the
Nueva Ecija Provincial Crime Laboratory Office. Likewise, the finding that De Guzman was found positive for use of
marijuana and shabu remains unrebutted. De Guzmans general denial that he is not a drug user cannot prevail
over this compelling evidence.
The foregoing constitutes more than substantial evidence that De Guzman was indeed found positive for use of
dangerous drugs. In Dadulo v. Court of Appeals,10 we held that "(a)dministrative proceedings are governed by the
substantial evidence rule. Otherwise stated, a finding of guilt in an administrative case would have to be sustained
for as long as it is supported by substantial evidence that the respondent has committed acts stated in the

complaint. Substantial evidence is more than a mere scintilla of evidence. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if other minds equally reasonable might
conceivably opine otherwise."11
This Court is a temple of justice. Its basic duty and responsibility is the dispensation of justice. As dispensers of
justice, all members and employees of the Judiciary are expected to adhere strictly to the laws of the land, one of
which is Republic Act No. 916512 which prohibits the use of dangerous drugs.13
The Court has adhered to the policy of safeguarding the welfare, efficiency, and well-being not only of all the court
personnel, but also that of the general public whom it serves. The Court will not allow its front-line representatives,
like De Guzman, to put at risk the integrity of the whole judiciary. As we held in Baron v. Anacan,14 "(t)he image of a
court of justice is mirrored in the conduct, official and otherwise, of the personnel who work thereat. Thus, the
conduct of a person serving the judiciary must, at all times, be characterized by propriety and decorum and above
all else, be above suspicion so as to earn and keep the respect of the public for the judiciary. The Court would never
countenance any conduct, act or omission on the part of all those in the administration of justice, which will violate
the norm of public accountability and diminish or even just tend to diminish the faith of the people in the judiciary."
Article XI of the Constitution mandates that:
SECTION 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people and serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and
lead modest lives.
De Guzmans use of prohibited drugs has greatly affected his efficiency in the performance of his functions. De
Guzman did not refute the observation of his superior, Judge Sta. Romana, that as a criminal docket court clerk, he
(De Guzman) was totally inept and incompetent. Hence, to get across his displeasure and dissatisfaction with his
job performance, Judge Sta. Romana gave De Guzman an unsatisfactory rating.
Moreover, De Guzmans efficiency as a custodian of court records is also totally wanting. As early as May 12, 2004,
Judge Sta. Romana issued a Memorandum addressed to De Guzman relative to the "sleeping cases" inside the
latters drawer. It would appear that several cases have not been proceeded upon because De Guzman hid the
records of the same inside his drawer. The text of the said Memorandum reads:
An examination of the records found in your drawer reveal that the following cases have not moved because you
have not brought the same to the attention of the Presiding Judge, to wit:
1. Crim. Case No. 1849-C, PP v. Ruben Villanueva Order of transmittal to the Office of the Provincial
Prosecutor of Nueva Ecija dated August 6, 2003 to resolve the Motion for Reconsideration.
Resolution of the Provincial Prosecutor dated September 23, 2003 denying the Motion for Reconsideration
and transmitting the records to the RTC, Br. 31, Guimba, Nueva Ecija received by this court on September 24,
2003;
2. Crim. Case No. 1993-G, PP vs. JOJO SUPNET Information dated October 14, 2002 received by this
Court on November 18, 2002;
3. Crim. Case No. 2013-G, PP vs. Brgy. Capt. BAYANI CAMIS Information dated September 23, 2002
received by this court on January 24, 2003;
4. Crim. Case No. 2007-G, PP vs. Armando Marcos Information dated June 23, 2002; Records received on
January 2, 2003.
The Presiding Judge caused the issuance of finding of probable causes and the corresponding Warrants of Arrest.
You are hereby ordered to assist the OIC/Clerk of Court in sending forthwith the Warrants of Arrest to the proper
agencies for implementation.
In the same vein, Reyes also put forth the absurd behavioral manifestations of De Guzman. According to Reyes,
Judge Sta. Romana would always remind De Guzman to prepare and transmit the complete records of the appealed
cases. However, De Guzman would only make empty assurances to perform his task. Notwithstanding the
reminders of his superiors, De Guzman would still fail to transmit the records. Instead, he would report the next day
and jubilantly declare that the problem has been solved at last.
In fine, we agree with the OCA that by his repeated and contumacious conduct of disrespecting the Courts
directives, De Guzman is guilty of gross misconduct and has already forfeited his privilege of being an employee of
the Court. Likewise, we can no longer countenance his manifestations of queer behavior, bordering on absurd,

irrational and irresponsible, because it has greatly affected his job performance and efficiency. By using prohibited
drugs, and being a front-line representative of the Judiciary, De Guzman has exposed to risk the very institution
which he serves. It is only by weeding out the likes of De Guzman from the ranks that we would be able to preserve
the integrity of this institution.
Two justices disagree with the majority opinion. They opine that the Courts action in this case contravenes an
express public policy, i.e., "imprisonment for drug dealers and pushers, rehabilitation for their victims." They also
posit that De Guzmans failure to properly perform his duties and promptly respond to Court orders precisely springs
from his drug addiction that requires rehabilitation. Finally, they state that the Courts real strength is not in its
righteousness but in its willingness to understand that men are not perfect and that there is a time to punish and a
time to give a chance for contrition and change.
However, the legislative policy as embodied in Republic Act No. 9165 in deterring dangerous drug use by resort to
sustainable programs of rehabilitation and treatment must be considered in light of this Courts constitutional power
of administrative supervision over courts and court personnel. The legislative power imposing policies through laws
is not unlimited and is subject to the substantive and constitutional limitations that set parameters both in the
exercise of the power itself and the allowable subjects of legislation.15 As such, it cannot limit the Courts power to
impose disciplinary actions against erring justices, judges and court personnel. Neither should such policy be used
to restrict the Courts power to preserve and maintain the Judiciarys honor, dignity and integrity and public
confidence that can only be achieved by imposing strict and rigid standards of decency and propriety governing the
conduct of justices, judges and court employees.
Likewise, we cannot subscribe to the idea that De Guzmans irrational behavior stems solely from his being a drug
user. Such queer behavior can be attributed to several factors. However, it cannot by any measure be categorically
stated at this point that it can be attributed solely to his being a drug user.
Finally, it must be emphasized at this juncture that De Guzmans dismissal is not grounded only on his being a drug
user. His outright dismissal from the service is likewise anchored on his contumacious and repeated acts of not
heeding the directives of this Court. As we have already stated, such attitude betrays not only a recalcitrant streak of
character, but also disrespect for the lawful orders and directives of the Court.
ACCORDINGLY, Rene de Guzman, Clerk, Regional Trial Court of Guimba, Nueva Ecija, Branch 31, is hereby
DISMISSED from the service with forfeiture of all retirement benefits, except accrued leave credits, and
disqualification from reinstatement or appointment to any public office, including government-owned or controlled
corporations.
SO ORDERED.
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

Today is Thursday, June 04, 2015

Greco Antonious Beda B. Belgica v. Hon. Executive Secretary Paquito N. Ochoa, G.R. No. 208566, 19 November 2013
Decision, Perlas-Bernabe [J]
Concurring Opinion, Sereno [J]
Concurring Opinion, Carpio [J]
Concurring Opinion, Leonen [J]
Concurring and Dissenting Opinion, Brion [J]

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 208566

November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE
and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE
PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO
S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province
of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT
OF BUDGET AND MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail the
constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court shall heretofore
discuss the systems conceptual underpinnings before detailing the particulars of the constitutional challenge.
The Facts
I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced to the
degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast their
famished bodies into the porcine feast to assuage their hunger with morsels coming from the generosity of
their well-fed master.4 This practice was later compared to the actions of American legislators in trying to
direct federal budgets in favor of their districts.5 While the advent of refrigeration has made the actual pork
barrel obsolete, it persists in reference to political bills that "bring home the bacon" to a legislators district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of government spending
meant for localized projects and secured solely or primarily to bring money to a representative's district.7
Some scholars on the subject further use it to refer to legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of Members
of the Legislature,9 although, as will be later discussed, its usage would evolve in reference to certain funds of
the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval. Particularly, in the area of fund
release, Section 312 provides that the sums appropriated for certain public works projects13 "shall
be distributed x x x subject to the approval of a joint committee elected by the Senate and the
House of Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and
Communications."14 Also, in the area of fund realignment, the same section provides that the
said secretary, "with the approval of said joint committee, or of the authorized members thereof,
may, for the purposes of said distribution, transfer unexpended portions of any item of
appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment legislator participation broadened from
the areas of fund release and realignment to the area of project identification. During that year,
the mechanics of the public works act was modified to the extent that the discretion of choosing
projects was transferred from the Secretary of Commerce and Communications to legislators.
"For the first time, the law carried a list of projects selected by Members of Congress, they being
the representatives of the people, either on their own account or by consultation with local
officials or civil leaders."16 During this period, the pork barrel process commenced with local
government councils, civil groups, and individuals appealing to Congressmen or Senators for
projects. Petitions that were accommodated formed part of a legislators allocation, and the
amount each legislator would eventually get is determined in a caucus convened by the majority.
The amount was then integrated into the administration bill prepared by the Department of Public
Works and Communications. Thereafter, the Senate and the House of Representatives added
their own provisions to the bill until it was signed into law by the President the Public Works
Act.17 In the 1960s, however, pork barrel legislation reportedly ceased in view of the stalemate
between the House of Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature,"19 the reprieve was
only temporary. By 1982, the Batasang Pambansa had already introduced a new item in the
General Appropriations Act (GAA) called the" Support for Local Development Projects" (SLDP)
under the article on "National Aid to Local Government Units". Based on reports,20 it was under
the SLDP that the practice of giving lump-sum allocations to individual legislators began, with
each assemblyman receiving P500,000.00. Thereafter, assemblymen would communicate their
project preferences to the Ministry of Budget and Management for approval. Then, the said
ministry would release the allocation papers to the Ministry of Local Governments, which would,
in turn, issue the checks to the city or municipal treasurers in the assemblymans locality. It has
been further reported that "Congressional Pork Barrel" projects under the SLDP also began to
cover not only public works projects, or so- called "hard projects", but also "soft projects",21 or
non-public works projects such as those which would fall under the categories of, among others,
education, health and livelihood.22
C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and
the "Visayas Development Fund" which were created with lump-sum appropriations of P480
Million and P240 Million, respectively, for the funding of development projects in the Mindanao
and Visayas areas in 1989. It has been documented23 that the clamor raised by the Senators
and the Luzon legislators for a similar funding, prompted the creation of the "Countrywide
Development Fund" (CDF) which was integrated into the 1990 GAA24 with an initial funding of
P2.3 Billion to cover "small local infrastructure and other priority community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the submission of
the required list of projects and activities."Although the GAAs from 1990 to 1992 were silent as to
the amounts of allocations of the individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992, Representatives were receiving
P12.5 Million each in CDF funds, while Senators were receiving P18 Million each, without any
limitation or qualification, and that they could identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and buildings to "soft projects" such as textbooks,
medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to
be made upon the submission of the list of projects and activities identified by, among others,
individual legislators. For the first time, the 1993 CDF Article included an allocation for the VicePresident.29 As such, Representatives were allocated P12.5 Million each in CDF funds,
Senators, P18 Million each, and the Vice-President, P20 Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification
and fund release as found in the 1993 CDF Article. In addition, however, the Department of
Budget and Management (DBM) was directed to submit reports to the Senate Committee on
Finance and the House Committee on Appropriations on the releases made from the funds.33
Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with
the implementing agency concerned, were directed to submit to the DBM the list of 50% of
projects to be funded from their respective CDF allocations which shall be duly endorsed by (a)
the Senate President and the Chairman of the Committee on Finance, in the case of the Senate,
and (b) the Speaker of the House of Representatives and the Chairman of the Committee on
Appropriations, in the case of the House of Representatives; while the list for the remaining 50%
was to be submitted within six (6) months thereafter. The same article also stated that the project
list, which would be published by the DBM,35 "shall be the basis for the release of funds" and that
"no funds appropriated herein shall be disbursed for projects not included in the list herein
required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no longer
required as the list itself sufficed for the release of CDF Funds.
The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to perpetuate the ad ministrations political
agenda.37 It has been articulated that since CIs "formed part and parcel of the budgets of
executive departments, they were not easily identifiable and were thus harder to monitor."
Nonetheless, the lawmakers themselves as well as the finance and budget officials of the
implementing agencies, as well as the DBM, purportedly knew about the insertions.38 Examples
of these CIs are the Department of Education (DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the El Nio Fund, and the Poverty Alleviation
Fund.39 The allocations for the School Building Fund, particularly, shall be made upon prior
consultation with the representative of the legislative district concerned.40 Similarly, the
legislators had the power to direct how, where and when these appropriations were to be
spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44
and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which contained a
special provision requiring "prior consultation" with the Member s of Congress for the release of
the funds.
It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in
the GAA. The requirement of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the implementing agency concerned was
explicitly stated in the 2000 PDAF Article. Moreover, realignment of funds to any expense
category was expressly allowed, with the sole condition that no amount shall be used to fund
personal services and other personnel benefits.47 The succeeding PDAF provisions remained
the same in view of the re-enactment48 of the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 200249 PDAF Article was brief and straightforward as it merely contained a single special
provision ordering the release of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The following year, 2003,50 the same
single provision was present, with simply an expansion of purpose and express authority to
realign. Nevertheless, the provisions in the 2003 budgets of the Department of Public Works and
Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress on
the aspects of implementation delegation and project list submission, respectively. In 2004, the
2003 GAA was re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and
projects under the ten point agenda of the national government and shall be released directly to
the implementing agencies." It also introduced the program menu concept,55 which is essentially
a list of general programs and implementing agencies from which a particular PDAF project may
be subsequently chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006
and hence, operated on the same bases. In similar regard, the program menu concept was
consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts
allocated for the individual legislators, as well as their participation in the proposal and
identification of PDAF projects to be funded. In contrast to the PDAF Articles, however, the
provisions under the DepEd School Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the concerned Member of Congress61
anent certain aspects of project implementation.
Significantly, it was during this era that provisions which allowed formal participation of nongovernmental organizations (NGO) in the implementation of government projects were
introduced. In the Supplemental Budget for 2006, with respect to the appropriation for school
buildings, NGOs were, by law, encouraged to participate. For such purpose, the law stated that
"the amount of at least P250 Million of the P500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs including the Federation of
Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school buildings x
x x."62 The same allocation was made available to NGOs in the 2007 and 2009 GAAs under the
DepEd Budget.63 Also, it was in 2007 that the Government Procurement Policy Board64 (GPPB)
issued Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution 12-2007), amending the
implementing rules and regulations65 of RA 9184,66 the Government Procurement Reform Act, to
include, as a form of negotiated procurement,67 the procedure whereby the Procuring Entity68
(the implementing agency) may enter into a memorandum of agreement with an NGO, provided
that "an appropriation law or ordinance earmarks an amount to be specifically contracted out to
NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article
included an express statement on lump-sum amounts allocated for individual legislators and the
Vice-President: Representatives were given P70 Million each, broken down into P40 Million for
"hard projects" and P30 Million for "soft projects"; while P200 Million was given to each Senator
as well as the Vice-President, with a P100 Million allocation each for "hard" and "soft projects."

Likewise, a provision on realignment of funds was included, but with the qualification that it may
be allowed only once. The same provision also allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and Local Government, Environment and Natural
Resources, Energy, and Public Works and Highways to realign PDAF Funds, with the further
conditions that: (a) realignment is within the same implementing unit and same project category
as the original project, for infrastructure projects; (b) allotment released has not yet been
obligated for the original scope of work, and (c) the request for realignment is with the
concurrence of the legislator concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by each
implementing agency (priority list requirement) x x x." However, as practiced, it would still be the
individual legislator who would choose and identify the project from the said priority list.74
Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and
2013 PDAF Articles; but the allocation for the Vice-President, which was pegged at P200 Million
in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article now allowed LGUs to be
identified as implementing agencies if they have the technical capability to implement the
projects.77 Legislators were also allowed to identify programs/projects, except for assistance to
indigent patients and scholarships, outside of his legislative district provided that he secures the
written concurrence of the legislator of the intended outside-district, endorsed by the Speaker of
the House.78 Finally, any realignment of PDAF funds, modification and revision of project
identification, as well as requests for release of funds, were all required to be favorably endorsed
by the House Committee on Appropriations and the Senate Committee on Finance, as the case
may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of Members of
Congress, the present cases and the recent controversies on the matter have, however, shown that the
terms usage has expanded to include certain funds of the President such as the Malampaya Funds and the
Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a special fund under Section 880 of Presidential
Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In
enacting the said law, Marcos recognized the need to set up a special fund to help intensify, strengthen, and
consolidate government efforts relating to the exploration, exploitation, and development of indigenous energy
resources vital to economic growth.82 Due to the energy-related activities of the government in the
Malampaya natural gas field in Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special
fund created under PD 910 has been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD 1869,85 or the
Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by
Marcos on July 11, 1983. More than two (2) years after, he amended PD 1869 and accordingly issued PD
1993 on October 31, 1985,86 amending Section 1287 of the former law. As it stands, the Presidential Social
Fund has been described as a special funding facility managed and administered by the Presidential
Management Staff through which the President provides direct assistance to priority programs and projects
not funded under the regular budget. It is sourced from the share of the government in the aggregate gross
earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small part to
previous Presidents who reportedly used the "Pork Barrel" in order to gain congressional support.90 It was in
1996 when the first controversy surrounding the "Pork Barrel" erupted. Former Marikina City Representative
Romeo Candazo (Candazo), then an anonymous source, "blew the lid on the huge sums of government
money that regularly went into the pockets of legislators in the form of kickbacks."91 He said that "the
kickbacks were SOP (standard operating procedure) among legislators and ranged from a low 19 percent to
a high 52 percent of the cost of each project, which could be anything from dredging, rip rapping, sphalting,
concreting, and construction of school buildings."92 "Other sources of kickbacks that Candazo identified were
public funds intended for medicines and textbooks. A few days later, the tale of the money trail became the
banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a
roasted pig."93 "The publication of the stories, including those about congressional initiative allocations of
certain lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in the 2004
GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support that illegal misuse
of PDAF in the form of kickbacks has become a common exercise of unscrupulous Members of Congress,"
the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into
allegations that "the government has been defrauded of some P10 Billion over the past 10 years by a
syndicate using funds from the pork barrel of lawmakers and various government agencies for scores of
ghost projects."96 The investigation was spawned by sworn affidavits of six (6) whistle-blowers who declared
that JLN Corporation "JLN" standing for Janet Lim Napoles (Napoles) had swindled billions of pesos from
the public coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire decade. While the
NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles private accounts.97 Thus, after its investigation on the Napoles controversy,
criminal complaints were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder,
and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt
Practices Act. Also recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff
or representatives, the heads and other officials of three (3) implementing agencies, and the several
presidents of the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit investigation99
covering the use of legislators' PDAF from 2007 to 2009, or during the last three (3) years of the Arroyo
administration. The purpose of the audit was to determine the propriety of releases of funds under PDAF and
the Various Infrastructures including Local Projects (VILP)100 by the DBM, the application of these funds and
the implementation of projects by the appropriate implementing agencies and several government-ownedand-controlled corporations (GOCCs).101 The total releases covered by the audit amounted to P8.374 Billion
in PDAF and P32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit period.102 Accordingly, the Co As
findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority Development Assistance Fund
(PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the highlights of
which are as follows:103
Amounts released for projects identified by a considerable number of legislators significantly
exceeded their respective allocations.
Amounts were released for projects outside of legislative districts of sponsoring members of the
Lower House.
Total VILP releases for the period exceeded the total amount appropriated under the 2007 to 2009
GAAs.
Infrastructure projects were constructed on private lots without these having been turned over to the
government.
Significant amounts were released to implementing agencies without the latters endorsement and
without considering their mandated functions, administrative and technical capabilities to implement
projects.
Implementation of most livelihood projects was not undertaken by the implementing agencies
themselves but by NGOs endorsed by the proponent legislators to which the Funds were transferred.
The funds were transferred to the NGOs in spite of the absence of any appropriation law or
ordinance.
Selection of the NGOs were not compliant with law and regulations.
Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects
amount to P6.156 Billion were either found questionable, or submitted questionable/spurious
documents, or failed to liquidate in whole or in part their utilization of the Funds.
Procurement by the NGOs, as well as some implementing agencies, of goods and services
reportedly used in the projects were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from royalties in the
operation of the Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has
gone into a dummy NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA

Chairperson), the CoA is, as of this writing, in the process of preparing "one consolidated report" on the
Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA Report and the Napoles controversy, several
petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be declared
unconstitutional. To recount, the relevant procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society, filed a
Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork
Barrel System" be declared unconstitutional, and a writ of prohibition be issued permanently restraining respondents
Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective capacities as the incumbent Senate President
and Speaker of the House of Representatives, from further taking any steps to enact legislation appropriating funds
for the "Pork Barrel System," in whatever form and by whatever name it may be called, and from approving further
releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin
Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and
Prohibition With Prayer For The Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of
Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of Court (Belgica Petition), seeking that the
annual "Pork Barrel System," presently embodied in the provisions of the GAA of 2013 which provided for the 2013
PDAF, and the Executives lump-sum, discretionary funds, such as the Malampaya Funds and the Presidential
Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse of discretion.
Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the
Department of Budget and Management (DBM), and National Treasurer, or their agents, for them to immediately
cease any expenditure under the aforesaid funds. Further, they pray that the Court order the foregoing respondents
to release to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF
and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the recipient
entities or individuals, and all pertinent data thereto"; and (b) "the use of the Executives lump-sum, discretionary
funds, including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x from 2003
to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all pertinent data
thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the Congress of all presently off-budget,
lump-sum, discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances
from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated August 23,
2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease and desist order be
issued restraining President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing
such funds to Members of Congress and, instead, allow their release to fund priority projects identified and
approved by the Local Development Councils in consultation with the executive departments, such as the DPWH,
the Department of Tourism, the Department of Health, the Department of Transportation, and Communication and
the National Economic Development Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112
On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b) requiring public
respondents to comment on the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining the
DBM, National Treasurer, the Executive Secretary, or any of the persons acting under their authority from releasing
(1) the remaining PDAF allocated to Members of Congress under the GAA of 2013, and (2) Malampaya Funds
under the phrase "for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of
PD 910 but not for the purpose of "financing energy resource development and exploitation programs and projects
of the government# under the same provision; and (d) setting the consolidated cases for Oral Arguments on October
8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment (Comment) of
even date before the Court, seeking the lifting, or in the alternative, the partial lifting with respect to educational and
medical assistance purposes, of the Courts September 10, 2013 TRO, and that the consolidated petitions be
dismissed for lack of merit.113
On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on September 30,
2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica,
et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply

dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties for the
Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues material to the present
cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was directed to bring with him during the
Oral Arguments representative/s from the DBM and Congress who would be able to competently and completely
answer questions related to, among others, the budgeting process and its implementation. Further, the CoA
Chairperson was appointed as amicus curiae and thereby requested to appear before the Court during the Oral
Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties to
submit their respective memoranda within a period of seven (7) days, or until October 17, 2013, which the parties
subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the Courts
resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy; (b)
the issues raised in the consolidated petitions are matters of policy not subject to judicial review; (c) petitioners have
legal standing to sue; and (d) the Courts Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766,
and 113888, entitled "Philippine Constitution Association v. Enriquez"114 (Philconsa) and Decision dated April 24,
2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly and Poverty v. Secretary of Budget and
Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the "Pork Barrel System" under the
principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation of powers;
(b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political dynasties; and (f)
local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the President" under
Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines" under Section 12 of PD 1869, as amended by PD 1993,
relating to the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegations of
legislative power.
These main issues shall be resolved in the order that they have been stated. In addition, the Court shall also tackle
certain ancillary issues as prompted by the present cases.
The Courts Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless there is compliance with the legal requisites for
judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for the exercise of judicial power;
(b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c)
the question of constitutionality must be raised at the earliest opportunity ; and (d) the issue of constitutionality must
be the very lis mota of the case.118 Of these requisites, case law states that the first two are the most important119
and, therefore, shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This is embodied

in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable x x x."
Jurisprudence provides that an actual case or controversy is one which "involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.121 In other words, "there must be a contrariety of legal rights that can be interpreted and
enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an actual case or
controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are
already ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, and the petitioner must allege the existence of
an immediate or threatened injury to itself as a result of the challenged action."123 "Withal, courts will decline to pass
upon constitutional issues through advisory opinions, bereft as they are of authority to resolve hypothetical or moot
questions."124
Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for
adjudication since the challenged funds and the provisions allowing for their utilization such as the 2013 GAA for
the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social
Fund are currently existing and operational; hence, there exists an immediate or threatened injury to petitioners as
a result of the unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and
academic by the reforms undertaken by respondents. A case becomes moot when there is no more actual
controversy between the parties or no useful purpose can be served in passing upon the merits.125 Differing from
this description, the Court observes that respondents proposed line-item budgeting scheme would not terminate the
controversy nor diminish the useful purpose for its resolution since said reform is geared towards the 2014 budget,
and not the 2013 PDAF Article which, being a distinct subject matter, remains legally effective and existing. Neither
will the Presidents declaration that he had already "abolished the PDAF" render the issues on PDAF moot precisely
because the Executive branch of government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress, through the passage
of a repealing law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the
following exchange between Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during
the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor General Jardeleza:
Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the
President has a duty to execute the laws but in the face of the outrage over PDAF, the President was saying, "I am
not sure that I will continue the release of the soft projects," and that started, Your Honor. Now, whether or not that
(interrupted)
Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to stop the
releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative
Code128 x x x. So at most the President can suspend, now if the President believes that the PDAF is
unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF because of
the CoA Report, because of the reported irregularities and this Court can take judicial notice, even outside, outside
of the COA Report, you have the report of the whistle-blowers, the President was just exercising precisely the duty
.
xxxx
Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop and investigate,
and prosecute, he has done that. But, does that mean that PDAF has been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to repeal it, or
this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic principle
is not a magical formula that can automatically dissuade the Court in resolving a case." The Court will decide cases,
otherwise moot, if: first, there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public; and fourth, the case is capable of
repetition yet evading review.129
The applicability of the first exception is clear from the fundamental posture of petitioners they essentially allege
grave violations of the Constitution with respect to, inter alia, the principles of separation of powers, non-delegability
of legislative power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from the nature of the interests involved
the constitutionality of the very system within which significant amounts of public funds have been and continue to
be utilized and expended undoubtedly presents a situation of exceptional character as well as a matter of
paramount public interest. The present petitions, in fact, have been lodged at a time when the systems flaws have
never before been magnified. To the Courts mind, the coalescence of the CoA Report, the accounts of numerous
whistle-blowers, and the governments own recognition that reforms are needed "to address the reported abuses of
the PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the importance of the matter. It is
also by this finding that the Court finds petitioners claims as not merely theorized, speculative or hypothetical. Of
note is the weight accorded by the Court to the findings made by the CoA which is the constitutionally-mandated
audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoAs
disallowance of irregularly disbursed PDAF funds, it was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and ultimately the people's, property. The exercise of its general
audit power is among the constitutional mechanisms that gives life to the check and balance system inherent in our
form of government.
It is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is
constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of powers but also for
their presumed expertise in the laws they are entrusted to enforce. Findings of administrative agencies are accorded
not only respect but also finality when the decision and order are not tainted with unfairness or arbitrariness that
would amount to grave abuse of discretion. It is only when the CoA has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction, that this Court entertains a petition
questioning its rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these cases, the
Court deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely due to the practical need for a definitive ruling on the
systems constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson estimates that thousands
of notices of disallowances will be issued by her office in connection with the findings made in the CoA Report. In
this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed out that all of these would
eventually find their way to the courts.132 Accordingly, there is a compelling need to formulate controlling principles
relative to the issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may be guided on
how public funds should be utilized in accordance with constitutional principles.
Finally, the application of the fourth exception is called for by the recognition that the preparation and passage of the
national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The relevance of the issues before
the Court does not cease with the passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel
System," by its multifarious iterations throughout the course of history, lends a semblance of truth to petitioners
claim that "the same dog will just resurface wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the
government had already backtracked on a previous course of action yet the Court used the "capable of repetition
but evading review" exception in order "to prevent similar questions from re- emerging."137 The situation similarly
holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are

spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial
review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and controversies# carries the assurance that "the
courts will not intrude into areas committed to the other branches of government."138 Essentially, the foregoing
limitation is a restatement of the political question doctrine which, under the classic formulation of Baker v. Carr,139
applies when there is found, among others, "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," "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." Cast
against this light, respondents submit that the "the political branches are in the best position not only to perform
budget-related reforms but also to do them in response to the specific demands of their constituents" and, as such,
"urge the Court not to impose a solution at this stage."140
The Court must deny respondents submission.
Suffice it to state that the issues raised before the Court do not present political but legal questions which are within
its province to resolve. A political question refers to "those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure."141 The intrinsic constitutionality of the "Pork Barrel System" is not an
issue dependent upon the wisdom of the political branches of government but rather a legal one which the
Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are incapable of rendering precisely because it
is an exercise of judicial power. More importantly, the present Constitution has not only vested the Judiciary the right
to exercise judicial power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987
Constitution cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. It 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." In Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution and
its effect on the political question doctrine was explained as follows:143
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. Heretofore,
the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.
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. x x x (Emphases
supplied)
It must also be borne in mind that when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; does not in reality nullify or invalidate an act of the legislature or
the executive, but only asserts the solemn and sacred obligation assigned to it by the Constitution."144 To a great
extent, the Court is laudably cognizant of the reforms undertaken by its co-equal branches of government. But it is
by constitutional force that the Court must faithfully perform its duty. Ultimately, it is the Courts avowed intention that
a resolution of these cases would not arrest or in any manner impede the endeavors of the two other branches but,
in fact, help ensure that the pillars of change are erected on firm constitutional grounds. After all, it is in the best
interest of the people that each great branch of government, within its own sphere, contributes its share towards
achieving a holistic and genuine solution to the problems of society. For all these reasons, the Court cannot heed
respondents plea for judicial restraint.
C. Locus Standi.
"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. Unless a person is injuriously affected in any of his
constitutional rights by the operation of statute or ordinance, he has no standing."145
Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly, assert
that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they possess the

requisite standing to question the validity of the existing "Pork Barrel System" under which the taxes they pay have
been and continue to be utilized. It is undeniable that petitioners, as taxpayers, are bound to suffer from the
unconstitutional usage of public funds, if the Court so rules. Invariably, taxpayers have been 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 public funds are wasted through the enforcement of an invalid or unconstitutional law,147 as in these
cases.
Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they have
raised may be classified as matters "of transcendental importance, of overreaching significance to society, or of
paramount public interest."148 The CoA Chairpersons statement during the Oral Arguments that the present
controversy involves "not merely a systems failure" but a "complete breakdown of controls"149 amplifies, in addition
to the matters above-discussed, the seriousness of the issues involved herein. Indeed, of greater import than the
damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by
the enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare decisis
which means "follow past precedents and do not disturb what has been settled") are general procedural law
principles which both deal with the effects of previous but factually similar dispositions to subsequent cases. For the
cases at bar, the Court examines the applicability of these principles in relation to its prior rulings in Philconsa and
LAMP.
The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a previous case
rendered by a court of competent jurisdiction would bind a subsequent case if, between the first and second actions,
there exists an identity of parties, of subject matter, and of causes of action.151 This required identity is not, however,
attendant hereto since Philconsa and LAMP, respectively involved constitutional challenges against the 1994 CDF
Article and 2004 PDAF Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork
Barrel System." Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality and, thus,
hardly a judgment on the merits in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them according to
their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the Court up held,
in view of the presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to
review or reverse the standing pronouncements in the said case." Hence, for the foregoing reasons, the res judicata
principle, insofar as the Philconsa and LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under Article
8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion reached in one case
should be doctrinally applied to those that follow if the facts are substantially the same, even though the parties may
be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like
cases ought to be decided alike. Thus, where the same questions relating to the same event have been put forward
by the parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994 CDF
Article, was resolved by the Court. To properly understand its context, petitioners posturing was that "the power
given to the Members of Congress to propose and identify projects and activities to be funded by the CDF is an
encroachment by the legislature on executive power, since said power in an appropriation act is in implementation of
the law" and that "the proposal and identification of the projects do not involve the making of laws or the repeal and
amendment thereof, the only function given to the Congress by the Constitution."154 In deference to the foregoing
submissions, the Court reached the following main conclusions: one, under the Constitution, the power of
appropriation, or the "power of the purse," belongs to Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the appropriation law and it can be detailed and as broad
as Congress wants it to be; and, three, the proposals and identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa resolution was a limited response to a separation of
powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of
Congress. On the contrary, the present cases call for a more holistic examination of (a) the inter-relation between
the CDF and PDAF Articles with each other, formative as they are of the entire "Pork Barrel System" as well as (b)
the intra-relation of post-enactment measures contained within a particular CDF or PDAF Article, including not only
those related to the area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a full resort to stare decisis. As may be deduced from the main
conclusions of the case, Philconsas fundamental premise in allowing Members of Congress to propose and identify
of projects would be that the said identification authority is but an aspect of the power of appropriation which has
been constitutionally lodged in Congress. From this premise, the contradictions may be easily seen. If the authority
to identify projects is an aspect of appropriation and the power of appropriation is a form of legislative power thereby
lodged in Congress, then it follows that: (a) it is Congress which should exercise such authority, and not its individual
Members; (b) such authority must be exercised within the prescribed procedure of law passage and, hence, should
not be exercised after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the
force of law and, hence, cannot be merely recommendatory. Justice Vitugs Concurring Opinion in the same case
sums up the Philconsa quandary in this wise: "Neither would it be objectionable for Congress, by law, to appropriate
funds for such specific projects as it may be minded; to give that authority, however, to the individual members of
Congress in whatever guise, I am afraid, would be constitutionally impermissible." As the Court now largely benefits
from hindsight and current findings on the matter, among others, the CoA Report, the Court must partially abandon
its previous ruling in Philconsa insofar as it validated the post-enactment identification authority of Members of
Congress on the guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List v. Purisima155
(Abakada) has effectively overturned Philconsas allowance of post-enactment legislator participation in view of the
separation of powers principle. These constitutional inconsistencies and the Abakada rule will be discussed in
greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence, has not
set any controlling doctrine susceptible of current application to the substantive issues in these cases. In fine, stare
decisis would not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms "Pork
Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to the ensuing
discourse.
Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive branches
of government to accumulate lump-sum public funds in their offices with unchecked discretionary powers to
determine its distribution as political largesse."156 They assert that the following elements make up the Pork Barrel
System: (a) lump-sum funds are allocated through the appropriations process to an individual officer; (b) the officer
is given sole and broad discretion in determining how the funds will be used or expended; (c) the guidelines on how
to spend or use the funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political careers of the
disbursing official by yielding rich patronage benefits.157 They further state that the Pork Barrel System is comprised
of two (2) kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known as
the PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD
910 and the Presidential Social Fund under PD 1869, as amended by PD 1993.159
Considering petitioners submission and in reference to its local concept and legal history, the Court defines the Pork
Barrel System as the collective body of rules and practices that govern the manner by which lump-sum,
discretionary funds, primarily intended for local projects, are utilized through the respective participations of the
Legislative and Executive branches of government, including its members. The Pork Barrel System involves two (2)
kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund
wherein legislators, either individually or collectively organized into committees, are able to effectively control certain
aspects of the funds utilization through various post-enactment measures and/or practices. In particular, petitioners
consider the PDAF, as it appears under the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a postenactment measure that allows individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund
which allows the President to determine the manner of its utilization. For reasons earlier stated,161 the Court shall
delimit the use of such term to refer only to the Malampaya Funds and the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of
government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that 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."163 To the legislative branch of government, through Congress,164
belongs the power to make laws; to the executive branch of government, through the President,165 belongs the
power to enforce laws; and to the judicial branch of government, through the Court,166 belongs the power to interpret
laws. Because the three great powers have been, by constitutional design, ordained in this respect, "each
department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no authority
to make or construe the law, and the judiciary has no power to make or execute the law."168 The principle of
separation of powers and its concepts of autonomy and independence stem from the notion that the powers of
government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power over the other branches or the citizenry.169 To achieve this
purpose, the divided power must be wielded by co-equal branches of government that are equally capable of
independent action in exercising their respective mandates. Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another or others.170
Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly
encroaches on the domain of another. US Supreme Court decisions instruct that the principle of separation of
powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with the others
performance of its constitutionally assigned function";171 and "alternatively, the doctrine may be violated when one
branch assumes a function that more properly is entrusted to another."172 In other words, there is a violation of the
principle when there is impermissible (a) interference with and/or (b) assumption of another departments functions.
The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both
constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon.
Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the various operational
aspects of budgeting" and accordingly includes "the evaluation of work and financial plans for individual activities,"
the "regulation and release of funds" as well as all "other related activities" that comprise the budget execution
cycle.174 This is rooted in the principle that the allocation of power in the three principal branches of government is a
grant of all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive department
should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross
over the field of implementing the national budget since, as earlier stated, the same is properly the domain of the
Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it deliberates or acts on
the budget proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and wisdom,
formulates an appropriation act precisely following the process established by the Constitution, which specifies that
no money may be paid from the Treasury except in accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress law -making role necessarily comes to an end and from there the Executives
role of implementing the national budget begins. So as not to blur the constitutional boundaries between them,
Congress must "not concern it self with details for implementation by the Executive."176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the
moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any
role in the implementation or enforcement of the law violates the principle of separation of powers and is thus
unconstitutional."177 It must be clarified, however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still exercise its oversight function which is a mechanism
of checks and balances that the Constitution itself allows. But it must be made clear that Congress role must be
confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft
of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive
functions. As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following:
1wphi1

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in

connection with it, its power to ask heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power of confirmation; and
(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Emphases
supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013 PDAF Article
"wrecks the assignment of responsibilities between the political branches" as it is designed to allow individual
legislators to interfere "way past the time it should have ceased" or, particularly, "after the GAA is passed."179 They
state that the findings and recommendations in the CoA Report provide "an illustration of how absolute and definitive
the power of legislators wield over project implementation in complete violation of the constitutional principle of
separation of powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist
on the condition that individual legislators limited their role to recommending projects and not if they actually dictate
their implementation.181
For their part, respondents counter that the separations of powers principle has not been violated since the
President maintains "ultimate authority to control the execution of the GAA# and that he "retains the final discretion
to reject" the legislators proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality of the
power of members of Congress to propose and identify projects so long as such proposal and identification are
recommendatory."183 As such, they claim that "everything in the Special Provisions [of the 2013 PDAF Article follows
the Philconsa framework, and hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would be
the authority of legislators to participate in the post-enactment phases of project implementation.
At its core, legislators may it be through project lists,185 prior consultations186 or program menus187 have been
consistently accorded post-enactment authority to identify the projects they desire to be funded through various
Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify
projects post-GAA may be construed from the import of Special Provisions 1 to 3 as well as the second paragraph of
Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature which, as evinced from
past PDAF Articles, allows individual legislators to identify PDAF projects for as long as the identified project falls
under a general program listed in the said menu. Relatedly, Special Provision 2 provides that the implementing
agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may make his choice. The same
provision further authorizes legislators to identify PDAF projects outside his district for as long as the representative
of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to
"projects to be identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any modification and revision of
the project identification "shall be submitted to the House Committee on Appropriations and the Senate Committee
on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be." From the
foregoing special provisions, it cannot be seriously doubted that legislators have been accorded post-enactment
authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-enactment authority in the
areas of fund release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to
participate in the area of fund release through congressional committees is contained in Special Provision 5 which
explicitly states that "all request for release of funds shall be supported by the documents prescribed under Special
Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate Committee on
Finance, as the case may be"; while their statutory authority to participate in the area of fund realignment is
contained in: first , paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment
of funds shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be# ; and, second , paragraph 1,
also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and
Industry190 x x x to approve realignment from one project/scope to another within the allotment received from this
Fund, subject to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund
realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators
have been, in one form or another, authorized to participate in as Guingona, Jr. puts it "the various operational
aspects of budgeting," including "the evaluation of work and financial plans for individual activities" and the
"regulation and release of funds" in violation of the separation of powers principle. The fundamental rule, as
categorically articulated in Abakada, cannot be overstated from the moment the law becomes effective, any
provision of law that empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus unconstitutional.191 That the said
authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the
prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this end, the Court
must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise
that the same is merely recommendatory and, as such, respondents reliance on the same falters altogether.
Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the
identification authority of legislators is only of recommendatory import. Quite the contrary, respondents through the
statements of the Solicitor General during the Oral Arguments have admitted that the identification of the legislator
constitutes a mandatory requirement before his PDAF can be tapped as a funding source, thereby highlighting the
indispensability of the said act to the entire budget execution process:192
Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of the legislator
be utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot (interrupted)
Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented without the
identification by the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I would
doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA. And the SARO and
the NCA are triggered by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How can
a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must identify, in that
sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF Funds and his district would not
be able to have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other provisions
of law which similarly allow legislators to wield any form of post-enactment authority in the implementation or
enforcement of the budget, unrelated to congressional oversight, as violative of the separation of powers principle
and thus unconstitutional. Corollary thereto, informal practices, through which legislators have effectively intruded
into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack
or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices do
exist and have, in fact, been constantly observed throughout the years has not been substantially disputed here. As
pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these
cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we enforces the
initial thought that I have, after I had seen the extent of this research made by my staff, that neither the Executive
nor Congress frontally faced the question of constitutional compatibility of how they were engineering the budget
process. In fact, the words you have been using, as the three lawyers of the DBM, and both Houses of Congress
has also been using is surprise; surprised that all of these things are now surfacing. In fact, I thought that what the
2013 PDAF provisions did was to codify in one section all the past practice that had been done since 1991. In a
certain sense, we should be thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and
underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written into
the law or informal practices institutionalized in government agencies, else the Executive department be deprived of
what the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by the body to
which the Constitution has conferred the same. In particular, Section 1, Article VI of the 1987 Constitution states that
such power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of
Representatives, except to the extent reserved to the people by the provision on initiative and referendum.195 Based
on this provision, it is clear that only Congress, acting as a bicameral body, and the people, through the process of
initiative and referendum, may constitutionally wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only recognized exceptions thereto would be: (a) delegated
legislative power to local governments which, by immemorial practice, are allowed to legislate on purely local
matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by law, exercise
powers necessary and proper to carry out a declared national policy in times of war or other national emergency,197
or fix within specified limits, and subject to such limitations and restrictions as Congress may impose, tariff rates,
import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the
national development program of the Government.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority to
implementing agencies for the limited purpose of either filling up the details of the law for its enforcement
(supplementary rule-making) or ascertaining facts to bring the law into actual operation (contingent rule-making).199
The conceptual treatment and limitations of delegated rule-making were explained in the case of People v.
Maceren200 as follows:
The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers
and is an exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary because of "the growing complexity of modern life, the
multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating the mode
or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or
expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the
statute cannot be sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said legislators are
effectively allowed to individually exercise the power of appropriation, which as settled in Philconsa is lodged in
Congress.201 That the power to appropriate must be exercised only through legislation is clear from Section 29(1),
Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." To understand what constitutes an act of appropriation, the Court, in
Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of appropriation involves (a)
the setting apart by law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the
2013 PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a)
how much from such fund would go to (b) a specific project or beneficiary that they themselves also determine. As
these two (2) acts comprise the exercise of the power of appropriation as described in Bengzon, and given that the
2013 PDAF Article authorizes individual legislators to perform the same, undoubtedly, said legislators have been
conferred the power to legislate which the Constitution does not, however, allow. Thus, keeping with the principle of

non-delegability of legislative power, the Court hereby declares the 2013 PDAF Article, as well as all other forms of
Congressional Pork Barrel which contain the similar legislative identification feature as herein discussed, as
unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended to be kept separate and distinct does not mean that
they are absolutely unrestrained and independent of each other. The Constitution has also provided for an elaborate
system of checks and balances to secure coordination in the workings of the various departments of the
government.203
A prime example of a constitutional check and balance would be the Presidents power to veto an item written into
an appropriation, revenue or tariff bill submitted to him by Congress for approval through a process known as "bill
presentment." The Presidents item-veto power is found in Section 27(2), Article VI of the 1987 Constitution which
reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill,
but the veto shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of itemveto, forms part of the "single, finely wrought and exhaustively considered, procedures" for law-passage as specified
under the Constitution.204 As stated in Abakada, the final step in the law-making process is the "submission of the
bill to the President for approval. Once approved, it takes effect as law after the required publication."205
Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the Court, in
Bengzon, explained that:206
The former Organic Act and the present Constitution of the Philippines make the Chief Executive an integral part of
the law-making power. His disapproval of a bill, commonly known as a veto, is essentially a legislative act. The
questions presented to the mind of the Chief Executive are precisely the same as those the legislature must
determine in passing a bill, except that his will be a broader point of view.
The Constitution is a limitation upon the power of the legislative department of the government, but in this respect it
is a grant of power to the executive department. The Legislature has the affirmative power to enact laws; the Chief
Executive has the negative power by the constitutional exercise of which he may defeat the will of the Legislature. It
follows that the Chief Executive must find his authority in the Constitution. But in exercising that authority he may not
be confined to rules of strict construction or hampered by the unwise interference of the judiciary. The courts will
indulge every intendment in favor of the constitutionality of a veto in the same manner as they will presume the
constitutionality of an act as originally passed by the Legislature. (Emphases supplied)
The justification for the Presidents item-veto power rests on a variety of policy goals such as to prevent log-rolling
legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive branchs role in the
budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme Court characterized
the Presidents item-power as "a salutary check upon the legislative body, calculated to guard the community
against the effects of factions, precipitancy, or of any impulse unfriendly to the public good, which may happen to
influence a majority of that body"; phrased differently, it is meant to "increase the chances in favor of the community
against the passing of bad laws, through haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item" which may
be the object of the veto. An item, as defined in the field of appropriations, pertains to "the particulars, the details,
the distinct and severable parts of the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of
the Philippine Islands,210 the US Supreme Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not
some general provision of law which happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to exercise
his power of item veto, must contain "specific appropriations of money" and not only "general provisions" which
provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by singular
correspondence meaning an allocation of a specified singular amount for a specified singular purpose, otherwise
known as a "line-item."211 This treatment not only allows the item to be consistent with its definition as a "specific
appropriation of money" but also ensures that the President may discernibly veto the same. Based on the foregoing
formulation, the existing Calamity Fund, Contingent Fund and the Intelligence Fund, being appropriations which
state a specified amount for a specific purpose, would then be considered as "line- item" appropriations which are
rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly apportioned into
component percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice Carpio
correctly pointed out, a valid appropriation may even have several related purposes that are by accounting and
budgeting practice considered as one purpose, e.g., MOOE (maintenance and other operating expenses), in which
case the related purposes shall be deemed sufficiently specific for the exercise of the Presidents item veto power.
Finally, special purpose funds and discretionary funds would equally square with the constitutional mechanism of
item-veto for as long as they follow the rule on singular correspondence as herein discussed. Anent special purpose
funds, it must be added that Section 25(4), Article VI of the 1987 Constitution requires that the "special
appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually
available as certified by the National Treasurer, or t o be raised by a corresponding revenue proposal therein."
Meanwhile, with respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said
funds "shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such
guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular lump-sum
amount to be tapped as a source of funding for multiple purposes. Since such appropriation type necessitates the
further determination of both the actual amount to be expended and the actual purpose of the appropriation which
must still be chosen from the multiple purposes stated in the law, it cannot be said that the appropriation law already
indicates a "specific appropriation of money# and hence, without a proper line-item which the President may veto.
As a practical result, the President would then be faced with the predicament of either vetoing the entire
appropriation if he finds some of its purposes wasteful or undesirable, or approving the entire appropriation so as
not to hinder some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement also raises
non-delegability issues considering that the implementing authority would still have to determine, again, both the
actual amount to be expended and the actual purpose of the appropriation. Since the foregoing determinations
constitute the integral aspects of the power to appropriate, the implementing authority would, in effect, be exercising
legislative prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum appropriation, the
legislators identification of the projects after the passage of the GAA denies the President the chance to veto that
item later on."212 Accordingly, they submit that the "item veto power of the President mandates that appropriations
bills adopt line-item budgeting" and that "Congress cannot choose a mode of budgeting which effectively renders
the constitutionally-given power of the President useless."213
On the other hand, respondents maintain that the text of the Constitution envisions a process which is intended to
meet the demands of a modernizing economy and, as such, lump-sum appropriations are essential to financially
address situations which are barely foreseen when a GAA is enacted. They argue that the decision of the Congress
to create some lump-sum appropriations is constitutionally allowed and textually-grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the
said amount would be further divided among individual legislators who would then receive personal lump-sum
allocations and could, after the GAA is passed, effectively appropriate PDAF funds based on their own discretion. As
these intermediate appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget within a budget" which subverts the prescribed
procedure of presentment and consequently impairs the Presidents power of item veto. As petitioners aptly point
out, the above-described system forces the President to decide between (a) accepting the entire P24.79 Billion
PDAF allocation without knowing the specific projects of the legislators, which may or may not be consistent with his
national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation abovecharacterized. In particular, the lump-sum amount of P24.79 Billion would be treated as a mere funding source

allotted for multiple purposes of spending, i.e., scholarships, medical missions, assistance to indigents, preservation
of historical materials, construction of roads, flood control, etc. This setup connotes that the appropriation law leaves
the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily
indicate a discernible item which may be subject to the Presidents power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays,
"limited state auditors from obtaining relevant data and information that would aid in more stringently auditing the
utilization of said Funds."216 Accordingly, she recommends the adoption of a "line by line budget or amount per
proposed program, activity or project, and per implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional
Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system provides for a greater
degree of flexibility to account for future contingencies cannot be an excuse to defeat what the Constitution requires.
Clearly, the first and essential truth of the matter is that unconstitutional means do not justify even commendable
ends.218
c. Accountability.
Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate defies
public accountability as it renders Congress incapable of checking itself or its Members. In particular, they point out
that the Congressional Pork Barrel "gives each legislator a direct, financial interest in the smooth, speedy passing of
the yearly budget" which turns them "from fiscalizers" into "financially-interested partners."219 They also claim that
the system has an effect on re- election as "the PDAF excels in self-perpetuation of elective officials." Finally, they
add that the "PDAF impairs the power of impeachment" as such "funds are indeed quite useful, to well, accelerate
the decisions of senators."220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public
trust," is an overarching reminder that every instrumentality of government should exercise their official functions
only in accordance with the principles of the Constitution which embodies the parameters of the peoples trust. The
notion of a public trust connotes accountability,221 hence, the various mechanisms in the Constitution which are
designed to exact accountability from public officers.
Among others, an accountability mechanism with which the proper expenditure of public funds may be checked is
the power of congressional oversight. As mentioned in Abakada,222 congressional oversight may be performed
either through: (a) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted
in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses
on any matter pertaining to their departments and its power of confirmation;223 or (b) investigation and monitoring of
the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork Barrel,
among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that individual legislators
are given post-enactment roles in the implementation of the budget makes it difficult for them to become
disinterested "observers" when scrutinizing, investigating or monitoring the implementation of the appropriation law.
To a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with postenactment authority, would, in effect, be checking on activities in which they themselves participate. Also, it must be
pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article VI of the
1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any
court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he,
directly or indirectly, be interested financially in any contract with, or in any franchise or special privilege granted by
the Government, or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation, or its subsidiary, during his term of office. He shall not intervene in any matter before any
office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.
(Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of project implementation a matter before another
office of government renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual
legislators control of his PDAF per se would allow him to perpetuate himself in office. Indeed, while the
Congressional Pork Barrel and a legislators use thereof may be linked to this area of interest, the use of his PDAF
for re-election purposes is a matter which must be analyzed based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between legislators and the
Executive department, through the formers post-enactment participation, may affect the process of impeachment,
this matter largely borders on the domain of politics and does not strictly concern the Pork Barrel Systems intrinsic
constitutionality. As such, it is an improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI of the
1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of Congressional
Pork Barrel of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System enables politicians who are members of political
dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section 26, Article II of the
1987 Constitution225 which states that:
Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties
as may be defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the qualifying
phrase "as may be defined by law." In this respect, said provision does not, by and of itself, provide a judicially
enforceable constitutional right but merely specifies guideline for legislative or executive action.226 Therefore, since
there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the Court
must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been
properly demonstrated how the Pork Barrel System would be able to propagate political dynasties.
5. Local Autonomy.
The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of
the 1987 Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.
Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective mechanisms of
recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities,
and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating to the organization and operation of the local
units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of 1991" (LGC),
wherein the policy on local autonomy had been more specifically explicated as follows:
Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political
subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest
development as self-reliant communities and make them more effective partners in the attainment of national goals.
Toward this end, the State shall provide for a more responsive and accountable local government structure instituted
through a system of decentralization whereby local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization shall proceed from the National Government to the
local government units.
xxxx
(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations
with appropriate local government units, nongovernmental and peoples organizations, and other concerned sectors
of the community before any project or program is implemented in their respective jurisdictions. (Emphases and
underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local
government units (LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national
economy. As explained by the Court in Philippine Gamefowl Commission v. Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy
which is intended to provide the needed impetus and encouragement to the development of our local political
subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal corporations are the small
republics from which the great one derives its strength." The vitalization of local governments will enable their
inhabitants to fully exploit their resources and more important, imbue them with a deepened sense of involvement in
public affairs as members of the body politic. This objective could be blunted by undue interference by the national
government in purely local affairs which are best resolved by the officials and inhabitants of such political units. The
decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional principles
on local autonomy since it allows district representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development.230 The Court agrees with petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a recognition that
individual members of Congress, far more than the President and their congressional colleagues, are likely to be
knowledgeable about the needs of their respective constituents and the priority to be given each project."231 Drawing
strength from this pronouncement, previous legislators justified its existence by stating that "the relatively small
projects implemented under the Congressional Pork Barrel complement and link the national development goals to
the countryside and grassroots as well as to depressed areas which are overlooked by central agencies which are
preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally established for a
worthy goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233
Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies
the avowed intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and
CDF allocation/division is based solely on the fact of office, without taking into account the specific interests and
peculiarities of the district the legislator represents. In this regard, the allocation/division limits are clearly not based
on genuine parameters of equality, wherein economic or geographic indicators have been taken into consideration.
As a result, a district representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to the former. To
add, what rouses graver scrutiny is that even Senators and Party-List Representatives and in some years, even
the Vice-President who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrels original intent which is "to make equal the
unequal." Ultimately, the PDAF and CDF had become personal funds under the effective control of each legislator
and given unto them on the sole account of their office.
The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the
functions of the various Local Development Councils (LDCs) which are already legally mandated to "assist the
corresponding sanggunian in setting the direction of economic and social development, and coordinating
development efforts within its territorial jurisdiction."234 Considering that LDCs are instrumentalities whose functions
are essentially geared towards managing local affairs,235 their programs, policies and resolutions should not be
overridden nor duplicated by individual legislators, who are national officers that have no law-making authority
except only when acting as a body. The undermining effect on local autonomy caused by the post-enactment
authority conferred to the latter was succinctly put by petitioners in the following wise:236
With PDAF, a Congressman can simply bypass the local development council and initiate projects on his own, and
even take sole credit for its execution. Indeed, this type of personality-driven project identification has not only
contributed little to the overall development of the district, but has even contributed to "further weakening
infrastructure planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby subvert
genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional Pork Barrel is
deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive issues
involving the Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993), which
respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid appropriations laws since
they do not have the "primary and specific" purpose of authorizing the release of public funds from the National
Treasury. Petitioners submit that Section 8 of PD 910 is not an appropriation law since the "primary and specific#
purpose of PD 910 is the creation of an Energy Development Board and Section 8 thereof only created a Special
Fund incidental thereto.237 In similar regard, petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential Social Fund is merely incidental to the "primary and
specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In view of the
foregoing, petitioners suppose that such funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law# under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists
when a provision of law (a) sets apart a determinate or determinable240 amount of money and (b) allocates the same
for a particular public purpose. These two minimum designations of amount and purpose stem from the very
definition of the word "appropriation," which means "to allot, assign, set apart or apply to a particular use or
purpose," and hence, if written into the law, demonstrate that the legislative intent to appropriate exists. As the
Constitution "does not provide or prescribe any particular form of words or religious recitals in which an authorization
or appropriation by Congress shall be made, except that it be made by law," an appropriation law may according
to Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular form of words or religious recitals
in which an authorization or appropriation by Congress shall be made, except that it be "made by law," such as
precisely the authorization or appropriation under the questioned presidential decrees. In other words, in terms of
time horizons, an appropriation may be made impliedly (as by past but subsisting legislations) as well as expressly
for the current fiscal year (as by enactment of laws by the present Congress), just as said appropriation may be
made in general as well as in specific terms. The Congressional authorization may be embodied in annual laws,
such as a general appropriations act or in special provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the questioned decrees. An appropriation measure is
sufficient if the legislative intention clearly and certainly appears from the language employed (In re Continuing
Appropriations, 32 P. 272), whether in the past or in the present. (Emphases and underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242
To constitute an appropriation there must be money placed in a fund applicable to the designated purpose. The
word appropriate means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in the
sense of the constitution means the setting apart a portion of the public funds for a public purpose. No particular
form of words is necessary for the purpose, if the intention to appropriate is plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the "primary
and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate, if a legal provision
designates a determinate or determinable amount of money and allocates the same for a particular public purpose,
then the legislative intent to appropriate becomes apparent and, hence, already sufficient to satisfy the requirement
of an "appropriation made by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all sources including receipts from service contracts and
agreements such as application and processing fees, signature bonus, discovery bonus, production bonus; all
money collected from concessionaires, representing unspent work obligations, fines and penalties under the
Petroleum Act of 1949; as well as the government share representing royalties, rentals, production share on service
contracts and similar payments on the exploration, development and exploitation of energy resources, shall form
part of a Special Fund to be used to finance energy resource development and exploitation programs and projects
of the government and for such other purposes as may be hereafter directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the Fifty (50%)

percent share of the Government in the aggregate gross earnings of the Corporation from this Franchise, or 60% if
the aggregate gross earnings be less than P150,000,000.00 shall be set aside and shall accrue to the General Fund
to finance the priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines.
(Emphases supplied)
Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a) Section 8 of PD
910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy Development Board
from any and all sources" (a determinable amount) "to be used to finance energy resource development and
exploitation programs and projects of the government and for such other purposes as may be hereafter directed by
the President" (a specified public purpose), and (b) Section 12 of PD 1869, as amended by PD 1993, which similarly
sets aside, "after deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in
the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than P150,000,000.00"
(also a determinable amount) "to finance the priority infrastructure development projects and x x x the restoration of
damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of the
1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal appropriation
under the said constitutional provision precisely because, as earlier stated, it contains post-enactment measures
which effectively create a system of intermediate appropriations. These intermediate appropriations are the actual
appropriations meant for enforcement and since they are made by individual legislators after the GAA is passed,
they occur outside the law. As such, the Court observes that the real appropriation made under the 2013 PDAF
Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-enactment determinations made by
the individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article
does not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual legislators
to appropriate in violation of the non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative
power since the phrase "and for such other purposes as may be hereafter directed by the President" gives the
President "unbridled discretion to determine for what purpose the funds will be used."243 Respondents, on the other
hand, urged the Court to apply the principle of ejusdem generis to the same section and thus, construe the phrase
"and for such other purposes as may be hereafter directed by the President" to refer only to other purposes related
"to energy resource development and exploitation programs and projects of the government."244
The Court agrees with petitioners submissions.
While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a legal
appropriation to exist, the appropriation law must contain adequate legislative guidelines if the same law delegates
rule-making authority to the Executive245 either for the purpose of (a) filling up the details of the law for its
enforcement, known as supplementary rule-making, or (b) ascertaining facts to bring the law into actual operation,
referred to as contingent rule-making.246 There are two (2) fundamental tests to ensure that the legislative guidelines
for delegated rule-making are indeed adequate. The first test is called the "completeness test." Case law states that
a law is complete when it sets forth therein the policy to be executed, carried out, or implemented by the delegate.
On the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law lays down
a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running riot.247 To be sufficient, the standard must specify the
limits of the delegates authority, announce the legislative policy, and identify the conditions under which it is to be
implemented.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as may be
hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power
insofar as it does not lay down a sufficient standard to adequately determine the limits of the Presidents authority
with respect to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase gives the
President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him
to unilaterally appropriate public funds beyond the purview of the law. That the subject phrase may be confined only
to "energy resource development and exploitation programs and projects of the government" under the principle of
ejusdem generis, meaning that the general word or phrase is to be construed to include or be restricted to things
akin to, resembling, or of the same kind or class as those specifically mentioned,249 is belied by three (3) reasons:
first, the phrase "energy resource development and exploitation programs and projects of the government" states a
singular and general class and hence, cannot be treated as a statutory reference of specific things from which the
general phrase "for such other purposes" may be limited; second, the said phrase also exhausts the class it

represents, namely energy development programs of the government;250 and, third, the Executive department has,
in fact, used the Malampaya Funds for non-energy related purposes under the subject phrase, thereby contradicting
respondents own position that it is limited only to "energy resource development and exploitation programs and
projects of the government."251 Thus, while Section 8 of PD 910 may have passed the completeness test since the
policy of energy development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya
Funds "to finance energy resource development and exploitation programs and projects of the government,"
remains legally effective and subsisting. Truth be told, the declared unconstitutionality of the aforementioned phrase
is but an assurance that the Malampaya Funds would be used as it should be used only in accordance with the
avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869 has already
been amended by PD 1993 which thus moots the parties submissions on the same.252 Nevertheless, since the
amendatory provision may be readily examined under the current parameters of discussion, the Court proceeds to
resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used
"to first, finance the priority infrastructure development projects and second, to finance the restoration of damaged
or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines." The Court finds that while the second indicated purpose adequately curtails the authority of the
President to spend the Presidential Social Fund only for restoration purposes which arise from calamities, the first
indicated purpose, however, gives him carte blanche authority to use the same fund for any infrastructure project he
may so determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure development
projects" and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a classification since the said term could pertain to any kind of
facility. This may be deduced from its lexicographic definition as follows: "the underlying framework of a system,
especially public services and facilities (such as highways, schools, bridges, sewers, and water-systems) needed to
support commerce as well as economic and residential development."253 In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as unconstitutional since similar to the above-assailed
provision under Section 8 of PD 910 it lies independently unfettered by any sufficient standard of the delegating
law. As they are severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally
effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did so in the context
of its pronouncements made in this Decision petitioners equally pray that the Executive Secretary and/or the DBM
be ordered to release to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of
their PDAF and VILP from the years 2003 to 2013, specifying the use of the funds, the project or activity and the
recipient entities or individuals, and all pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances
from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners prayer is grounded on
Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
The Court denies petitioners submission.
Case law instructs that the proper remedy to invoke the right to information is to file a petition for mandamus. As
explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the government agency in
custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot
be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the
discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any
whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the
concomitant duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the
information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to information
does not include the right to compel the preparation of "lists, abstracts, summaries and the like." In the same case, it
was stressed that it is essential that the "applicant has a well -defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act required." Hence, without the foregoing
substantiations, the Court cannot grant a particular request for information. The pertinent portions of Valmonte are
hereunder quoted:258
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official
records," the Constitution does not accord them a right to compel custodians of official records to prepare lists,
abstracts, summaries and the like in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear
and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act
required. The corresponding duty of the respondent to perform the required act must be clear and specific Lemi v.
Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27,
1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare
the list requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the Court finds
that petitioners have failed to establish a "a well-defined, clear and certain legal right" to be furnished by the
Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List and Presidential Pork Use Report.
Neither did petitioners assert any law or administrative issuance which would form the bases of the latters duty to
furnish them with the documents requested. While petitioners pray that said information be equally released to the
CoA, it must be pointed out that the CoA has not been impleaded as a party to these cases nor has it filed any
petition before the Court to be allowed access to or to compel the release of any official document relevant to the
conduct of its audit investigations. While the Court recognizes that the information requested is a matter of
significant public concern, however, if only to ensure that the parameters of disclosure are properly foisted and so as
not to unduly hamper the equally important interests of the government, it is constrained to deny petitioners prayer
on this score, without prejudice to a proper mandamus case which they, or even the CoA, may choose to pursue
through a separate petition.
It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished with such
schedule/list and report and not in any way deny them, or the general public, access to official documents which are
already existing and of public record. Subject to reasonable regulation and absent any valid statutory prohibition,
access to these documents should not be proscribed. Thus, in Valmonte, while the Court denied the application for
mandamus towards the preparation of the list requested by petitioners therein, it nonetheless allowed access to the
documents sought for by the latter, subject, however, to the custodians reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to
reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end
that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the
records may be prevented and that the right of other persons entitled to inspect the records may be insured Legaspi
v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the
second and third alternative acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDPLaban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners Prayer to Include Matters in Congressional Deliberations.
Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress of all
presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from the x x x Malampaya
Fund, remittances from the PAGCOR and the PCSO or the Executives Social Funds."260
Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to the
prerogative of the political branches of government. Hence, lest the Court itself overreach, it must equally deny their
prayer on this score.
3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.
The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of released funds.
In response to the Courts September 10, 2013 TRO that enjoined the release of the remaining PDAF allocated for
the year 2013, the DBM issued Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which
pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order (SARO)
has been issued by the DBM and such SARO has been obligated by the implementing agencies prior to the
issuance of the TRO, may continually be implemented and disbursements thereto effected by the agencies
concerned.
Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement of PDAF
funds as long as they are: first, covered by a SARO; and, second, that said SARO had been obligated by the
implementing agency concerned prior to the issuance of the Courts September 10, 2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet involve the
release of funds under the PDAF, as release is only triggered by the issuance of a Notice of Cash Allocation
[(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should remain enjoined.
For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated allotments."
They explain that once a SARO has been issued and obligated by the implementing agency concerned, the PDAF
funds covered by the same are already "beyond the reach of the TRO because they cannot be considered as
remaining PDAF." They conclude that this is a reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013 TRO should be
lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013 PDAF Article as
declared herein has the consequential effect of converting the temporary injunction into a permanent one. Hence,
from the promulgation of this Decision, the release of the remaining PDAF funds for 2013, among others, is now
permanently enjoined.
The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved as it has a
practical impact on the execution of the current Decision. In particular, the Court must resolve the issue of whether
or not PDAF funds covered by obligated SAROs, at the time this Decision is promulgated, may still be disbursed
following the DBMs interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners posturing for the fundamental reason that funds covered by an
obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined by the DBM itself in its
website, is "aspecific authority issued to identified agencies to incur obligations not exceeding a given amount
during a specified period for the purpose indicated. It shall cover expenditures the release of which is subject to
compliance with specific laws or regulations, or is subject to separate approval or clearance by competent
authority."263
Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and not the
directive to pay. Practically speaking, the SARO does not have the direct and immediate effect of placing public
funds beyond the control of the disbursing authority. In fact, a SARO may even be withdrawn under certain
circumstances which will prevent the actual release of funds. On the other hand, the actual release of funds is
brought about by the issuance of the NCA,264 which is subsequent to the issuance of a SARO. As may be
determined from the statements of the DBM representative during the Oral Arguments:265
Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to enter into
commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able to pay or to liquidate
the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is the go signal for the MDS for
the authorized government-disbursing banks to, therefore, pay the payees depending on the projects or projects
covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are withdrawn
by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)
Thus, unless an NCA has been issued, public funds should not be treated as funds which have been "released." In
this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by obligated SAROs, and
without any corresponding NCAs issued, must, at the time of this Decisions promulgation, be enjoined and
consequently reverted to the unappropriated surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto cannot be disbursed even
though already obligated, else the Court sanctions the dealing of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the Malampaya Funds which have been obligated but not
released meaning, those merely covered by a SARO under the phrase "and for such other purposes as may be
hereafter directed by the President" pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential
Social Fund under the phrase "to finance the priority infrastructure development projects" pursuant to Section 12 of
PD 1869, as amended by PD 1993, which were altogether declared by the Court as unconstitutional. However,
these funds should not be reverted to the general fund as afore-stated but instead, respectively remain under the
Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of (a) the 2013
PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions similar thereto, and (c)
the phrases (1) "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD
910, and (2) "to finance the priority infrastructure development projects" under Section 12 of PD 1869, as amended
by PD 1993, must only be treated as prospective in effect in view of the operative fact doctrine.
To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate case, declares
the invalidity of a certain legislative or executive act, such act is presumed constitutional and thus, entitled to
obedience and respect and should be properly enforced and complied with. As explained in the recent case of
Commissioner of Internal Revenue v. San Roque Power Corporation,266 the doctrine merely "reflects 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."267 "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."268
For these reasons, this Decision should be heretofore applied prospectively.
Conclusion
The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final
analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the
rules within which it operates. To recount, insofar as it has allowed legislators to wield, in varying gradations, nonoversight, post-enactment authority in vital areas of budget execution, the system has violated the principle of
separation of powers; insofar as it has conferred unto legislators the power of appropriation by giving them personal,
discretionary funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created a system of
budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items ; insofar as it has diluted the

effectiveness of congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of
governance which they may be called to monitor and scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators, who are national officers, to intervene in affairs of purely local
nature, despite the existence of capable local institutions, it has likewise subverted genuine local autonomy ; and
again, insofar as it has conferred to the President the power to appropriate funds intended by law for energy-related
purposes only to other purposes he may deem fit as well as other public funds under the broad classification of
"priority infrastructure development projects," it has once more transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and
mechanisms the Court has herein pointed out should never again be adopted in any system of governance, by any
name or form, by any semblance or similarity, by any influence or effect. Disconcerting as it is to think that a system
so constitutionally unsound has monumentally endured, the Court urges the people and its co-stewards in
government to look forward with the optimism of change and the awareness of the past. At a time of great civic
unrest and vociferous public debate, the Court fervently hopes that its Decision today, while it may not purge all the
wrongs of society nor bring back what has been lost, guides this nation to the path forged by the Constitution so that
no one may heretofore detract from its cause nor stray from its course. After all, this is the Courts bounden duty and
no others.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this
Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and
the various Congressional Insertions, which authorize/d legislators whether individually or collectively organized
into committees to intervene, assume or participate in any of the various post-enactment stages of the budget
execution, such as but not limited to the areas of project identification, modification and revision of project
identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and
the various Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they
are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and
effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the President"
under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure development projects"
under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing the
sufficient standard test in violation of the principle of non-delegability of legislative power.
Accordingly, the Courts temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT.
Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous
years, and the funds sourced from (1) the Malampaya Funds under the phrase "and for such other purposes as may
be hereafter directed by the President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the
Presidential Social Fund under the phrase "to finance the priority infrastructure development projects" pursuant to
Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time
this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment
Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by
this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the
general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to
be utilized for their respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES
petitioners prayer seeking that the Executive Secretary and/or the Department of Budget and Management be
ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports related to
the availments and utilization of the funds subject of these cases. Petitioners access to official documents already
available and of public record which are related to these funds must, however, not be prohibited but merely
subjected to the custodians reasonable regulations or any valid statutory prohibition on the same. This denial is
without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue
through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary
deliberations of Congress as the same is a matter left to the prerogative of the political branches of government.
Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable
dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible
criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds under the
Pork Barrel System.
This Decision is immediately executory but prospective in effect.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 76633 October 18, 1988
EASTERN SHIPPING LINES, INC., petitioner,
vs.
PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA), MINISTER OF LABOR AND
EMPLOYMENT, HEARING OFFICER ABDUL BASAR and KATHLEEN D. SACO, respondents.
Jimenea, Dala & Zaragoza Law Office for petitioner.
The Solicitor General for public respondent.
Dizon Law Office for respondent Kathleen D. Saco.

CRUZ, J.:
The private respondent in this case was awarded the sum of P192,000.00 by the Philippine Overseas Employment
Administration (POEA) for the death of her husband. The decision is challenged by the petitioner on the principal
ground that the POEA had no jurisdiction over the case as the husband was not an overseas worker.
Vitaliano Saco was Chief Officer of the M/V Eastern Polaris when he was killed in an accident in Tokyo, Japan,
March 15, 1985. His widow sued for damages under Executive Order No. 797 and Memorandum Circular No. 2 of
the POEA. The petitioner, as owner of the vessel, argued that the complaint was cognizable not by the POEA but by
the Social Security System and should have been filed against the State Insurance Fund. The POEA nevertheless
assumed jurisdiction and after considering the position papers of the parties ruled in favor of the complainant. The
award consisted of P180,000.00 as death benefits and P12,000.00 for burial expenses.
The petitioner immediately came to this Court, prompting the Solicitor General to move for dismissal on the ground
of non-exhaustion of administrative remedies.
Ordinarily, the decisions of the POEA should first be appealed to the National Labor Relations Commission, on the
theory inter alia that the agency should be given an opportunity to correct the errors, if any, of its subordinates. This
case comes under one of the exceptions, however, as the questions the petitioner is raising are essentially
questions of law. 1 Moreover, the private respondent himself has not objected to the petitioner's direct resort to this Court,
observing that the usual procedure would delay the disposition of the case to her prejudice.

The Philippine Overseas Employment Administration was created under Executive Order No. 797, promulgated on
May 1, 1982, to promote and monitor the overseas employment of Filipinos and to protect their rights. It replaced the
National Seamen Board created earlier under Article 20 of the Labor Code in 1974. Under Section 4(a) of the said
executive order, the POEA is vested with "original and exclusive jurisdiction over all cases, including money claims,
involving employee-employer relations arising out of or by virtue of any law or contract involving Filipino contract
workers, including seamen." These cases, according to the 1985 Rules and Regulations on Overseas Employment
issued by the POEA, include "claims for death, disability and other benefits" arising out of such employment. 2
The petitioner does not contend that Saco was not its employee or that the claim of his widow is not compensable.
What it does urge is that he was not an overseas worker but a 'domestic employee and consequently his widow's
claim should have been filed with Social Security System, subject to appeal to the Employees Compensation
Commission.
We see no reason to disturb the factual finding of the POEA that Vitaliano Saco was an overseas employee of the

petitioner at the time he met with the fatal accident in Japan in 1985.
Under the 1985 Rules and Regulations on Overseas Employment, overseas employment is defined as "employment
of a worker outside the Philippines, including employment on board vessels plying international waters, covered by a
valid contract. 3 A contract worker is described as "any person working or who has worked overseas under a valid
employment contract and shall include seamen" 4 or "any person working overseas or who has been employed by another
which may be a local employer, foreign employer, principal or partner under a valid employment contract and shall include
seamen." 5 These definitions clearly apply to Vitaliano Saco for it is not disputed that he died while under a contract of
employment with the petitioner and alongside the petitioner's vessel, the M/V Eastern Polaris, while berthed in a foreign
country. 6

It is worth observing that the petitioner performed at least two acts which constitute implied or tacit recognition of the
nature of Saco's employment at the time of his death in 1985. The first is its submission of its shipping articles to the
POEA for processing, formalization and approval in the exercise of its regulatory power over overseas employment
under Executive Order NO. 797. 7 The second is its payment 8 of the contributions mandated by law and regulations to the
Welfare Fund for Overseas Workers, which was created by P.D. No. 1694 "for the purpose of providing social and welfare
services to Filipino overseas workers."

Significantly, the office administering this fund, in the receipt it prepared for the private respondent's signature,
described the subject of the burial benefits as "overseas contract worker Vitaliano Saco." 9 While this receipt is
certainly not controlling, it does indicate, in the light of the petitioner's own previous acts, that the petitioner and the Fund to
which it had made contributions considered Saco to be an overseas employee.

The petitioner argues that the deceased employee should be likened to the employees of the Philippine Air Lines
who, although working abroad in its international flights, are not considered overseas workers. If this be so, the
petitioner should not have found it necessary to submit its shipping articles to the POEA for processing,
formalization and approval or to contribute to the Welfare Fund which is available only to overseas workers.
Moreover, the analogy is hardly appropriate as the employees of the PAL cannot under the definitions given be
considered seamen nor are their appointments coursed through the POEA.
The award of P180,000.00 for death benefits and P12,000.00 for burial expenses was made by the POEA pursuant
to its Memorandum Circular No. 2, which became effective on February 1, 1984. This circular prescribed a standard
contract to be adopted by both foreign and domestic shipping companies in the hiring of Filipino seamen for
overseas employment. A similar contract had earlier been required by the National Seamen Board and had been
sustained in a number of cases by this Court. 10 The petitioner claims that it had never entered into such a contract with
the deceased Saco, but that is hardly a serious argument. In the first place, it should have done so as required by the
circular, which specifically declared that "all parties to the employment of any Filipino seamen on board any ocean-going
vessel are advised to adopt and use this employment contract effective 01 February 1984 and to desist from using any other
format of employment contract effective that date." In the second place, even if it had not done so, the provisions of the said
circular are nevertheless deemed written into the contract with Saco as a postulate of the police power of the State. 11

But the petitioner questions the validity of Memorandum Circular No. 2 itself as violative of the principle of nondelegation of legislative power. It contends that no authority had been given the POEA to promulgate the said
regulation; and even with such authorization, the regulation represents an exercise of legislative discretion which,
under the principle, is not subject to delegation.
The authority to issue the said regulation is clearly provided in Section 4(a) of Executive Order No. 797, reading as
follows:
... The governing Board of the Administration (POEA), as hereunder provided shall promulgate the
necessary rules and regulations to govern the exercise of the adjudicatory functions of the
Administration (POEA).
Similar authorization had been granted the National Seamen Board, which, as earlier observed, had itself prescribed
a standard shipping contract substantially the same as the format adopted by the POEA.
The second challenge is more serious as it is true that legislative discretion as to the substantive contents of the law
cannot be delegated. What can be delegated is the discretion to determine how the law may be enforced, not what
the law shall be. The ascertainment of the latter subject is a prerogative of the legislature. This prerogative cannot
be abdicated or surrendered by the legislature to the delegate. Thus, in Ynot v. Intermediate Apellate Court 12 which
annulled Executive Order No. 626, this Court held:

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 carabaos.' (Italics 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 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.
There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz, the
completeness test and the sufficient standard test. Under the first test, the law must be complete in all its terms and
conditions when it leaves the legislature such that when it reaches the delegate the only thing he will have to do is
enforce it. 13 Under the sufficient standard test, there must be adequate guidelines or stations in the law to map out the
boundaries of the delegate's authority and prevent the delegation from running riot. 14

Both tests are intended to prevent a total transference of legislative authority to the delegate, who is not allowed to
step into the shoes of the legislature and exercise a power essentially legislative.
The principle of non-delegation of powers is applicable to all the three major powers of the Government but is
especially important in the case of the legislative power because of the many instances when its delegation is
permitted. The occasions are rare when executive or judicial powers have to be delegated by the authorities to
which they legally certain. In the case of the legislative power, however, such occasions have become more and
more frequent, if not necessary. This had led to the observation that the delegation of legislative power has become
the rule and its non-delegation the exception.
The reason is the increasing complexity of the task of government and the growing inability of the legislature to cope
directly with the myriad problems demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To many of the problems attendant upon present-day
undertakings, the legislature may not have the competence to provide the required direct and efficacious, not to say,
specific solutions. These solutions may, however, be expected from its delegates, who are supposed to be experts
in the particular fields assigned to them.
The reasons given above for the delegation of legislative powers in general are particularly applicable to
administrative bodies. With the proliferation of specialized activities and their attendant peculiar problems, the
national legislature has found it more and more necessary to entrust to administrative agencies the authority to
issue rules to carry out the general provisions of the statute. This is called the "power of subordinate legislation."
With this power, administrative bodies may implement the broad policies laid down in a statute by "filling in' the
details which the Congress may not have the opportunity or competence to provide. This is effected by their
promulgation of what are known as supplementary regulations, such as the implementing rules issued by the
Department of Labor on the new Labor Code. These regulations have the force and effect of law.
Memorandum Circular No. 2 is one such administrative regulation. The model contract prescribed thereby has been
applied in a significant number of the cases without challenge by the employer. The power of the POEA (and before
it the National Seamen Board) in requiring the model contract is not unlimited as there is a sufficient standard
guiding the delegate in the exercise of the said authority. That standard is discoverable in the executive order itself
which, in creating the Philippine Overseas Employment Administration, mandated it to protect the rights of overseas
Filipino workers to "fair and equitable employment practices."
Parenthetically, it is recalled that this Court has accepted as sufficient standards "Public interest" in People v.
Rosenthal 15 "justice and equity" in Antamok Gold Fields v. CIR 16 "public convenience and welfare" in Calalang v. Williams
17 and "simplicity, economy and efficiency" in Cervantes v. Auditor General, 18 to mention only a few cases. In the United
States, the "sense and experience of men" was accepted in Mutual Film Corp. v. Industrial Commission, 19 and "national

security" in Hirabayashi v. United States. 20

It is not denied that the private respondent has been receiving a monthly death benefit pension of P514.42 since
March 1985 and that she was also paid a P1,000.00 funeral benefit by the Social Security System. In addition, as
already observed, she also received a P5,000.00 burial gratuity from the Welfare Fund for Overseas Workers.
These payments will not preclude allowance of the private respondent's claim against the petitioner because it is

specifically reserved in the standard contract of employment for Filipino seamen under Memorandum Circular No. 2,
Series of 1984, that
Section C. Compensation and Benefits.
1. In case of death of the seamen during the term of his Contract, the employer shall pay his
beneficiaries the amount of:
a. P220,000.00 for master and chief engineers
b. P180,000.00 for other officers, including radio operators and master electrician
c. P 130,000.00 for ratings.
2. It is understood and agreed that the benefits mentioned above shall be separate and distinct from,
and will be in addition to whatever benefits which the seaman is entitled to under Philippine laws. ...
3. ...
c. If the remains of the seaman is buried in the Philippines, the owners shall pay the
beneficiaries of the seaman an amount not exceeding P18,000.00 for burial expenses.
The underscored portion is merely a reiteration of Memorandum Circular No. 22, issued by the National Seamen
Board on July 12,1976, providing an follows:
Income Benefits under this Rule Shall be Considered Additional Benefits.
All compensation benefits under Title II, Book Four of the Labor Code of the Philippines (Employees
Compensation and State Insurance Fund) shall be granted, in addition to whatever benefits, gratuities
or allowances that the seaman or his beneficiaries may be entitled to under the employment contract
approved by the NSB. If applicable, all benefits under the Social Security Law and the Philippine
Medicare Law shall be enjoyed by the seaman or his beneficiaries in accordance with such laws.
The above provisions are manifestations of the concern of the State for the working class, consistently with the
social justice policy and the specific provisions in the Constitution for the protection of the working class and the
promotion of its interest.
One last challenge of the petitioner must be dealt with to close t case. Its argument that it has been denied due
process because the same POEA that issued Memorandum Circular No. 2 has also sustained and applied it is an
uninformed criticism of administrative law itself. Administrative agencies are vested with two basic powers, the
quasi-legislative and the quasi-judicial. The first enables them to promulgate implementing rules and regulations,
and the second enables them to interpret and apply such regulations. Examples abound: the Bureau of Internal
Revenue adjudicates on its own revenue regulations, the Central Bank on its own circulars, the Securities and
Exchange Commission on its own rules, as so too do the Philippine Patent Office and the Videogram Regulatory
Board and the Civil Aeronautics Administration and the Department of Natural Resources and so on ad infinitum on
their respective administrative regulations. Such an arrangement has been accepted as a fact of life of modern
governments and cannot be considered violative of due process as long as the cardinal rights laid down by Justice
Laurel in the landmark case of Ang Tibay v. Court of Industrial Relations 21 are observed.
Whatever doubts may still remain regarding the rights of the parties in this case are resolved in favor of the private
respondent, in line with the express mandate of the Labor Code and the principle that those with less in life should
have more in law.
When the conflicting interests of labor and capital are weighed on the scales of social justice, the heavier influence
of the latter must be counter-balanced by the sympathy and compassion the law must accord the underprivileged
worker. This is only fair if he is to be given the opportunity and the right to assert and defend his cause not as a
subordinate but as a peer of management, with which he can negotiate on even plane. Labor is not a mere
employee of capital but its active and equal partner.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. The temporary restraining order dated
December 10, 1986 is hereby LIFTED. It is so ordered.
Narvasa, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 124360 November 5, 1997

FRANCISCO S. TATAD, petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND THE SECRETARY OF THE DEPARTMENT OF
FINANCE, respondents.
G.R. No. 127867 November 5, 1997
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA, FLAG HUMAN RIGHTS
FOUNDATION, INC., FREEDOM FROM DEBT COALITION (FDC), SANLAKAS, petitioners,
vs.
HON. RUBEN TORRES in his capacity as the Executive Secretary, HON. FRANCISCO VIRAY, in his capacity
as the Secretary of Energy, CALTEX Philippines, Inc., PETRON Corporation and PILIPINAS SHELL
Corporation, respondents.

PUNO, J.:
The petitions at bar challenge the constitutionality of Republic Act No. 8180 entitled "An Act Deregulating the
Downstream Oil Industry and For Other Purposes". 1 R.A. No. 8180 ends twenty six (26) years of government regulation
of the downstream oil industry. Few cases carry a surpassing importance on the life of every Filipino as these petitions for the
upswing and downswing of our economy materially depend on the oscillation of oil.

First, the facts without the fat. Prior to 1971, there was no government agency regulating the oil industry other than
those dealing with ordinary commodities. Oil companies were free to enter and exit the market without any
government interference. There were four (4) refining companies (Shell, Caltex, Bataan Refining Company and Filoil
Refining) and six (6) petroleum marketing companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then operating in
the country. 2
In 1971, the country was driven to its knees by a crippling oil crisis. The government, realizing that petroleum and its
products are vital to national security and that their continued supply at reasonable prices is essential to the general
welfare, enacted the Oil Industry Commission Act. 3 It created the Oil Industry Commission (OIC) to regulate the
business of importing, exporting, re-exporting, shipping, transporting, processing, refining, storing, distributing, marketing and
selling crude oil, gasoline, kerosene, gas and other refined petroleum products. The OIC was vested with the power to fix the
market prices of petroleum products, to regulate the capacities of refineries, to license new refineries and to regulate the
operations and trade practices of the industry. 4

In addition to the creation of the OIC, the government saw the imperious need for a more active role of Filipinos in
the oil industry. Until the early seventies, the downstream oil industry was controlled by multinational companies. All
the oil refineries and marketing companies were owned by foreigners whose economic interests did not always
coincide with the interest of the Filipino. Crude oil was transported to the country by foreign-controlled tankers.
Crude processing was done locally by foreign-owned refineries and petroleum products were marketed through
foreign-owned retail outlets. On November 9, 1973, President Ferdinand E. Marcos boldly created the Philippine
National Oil Corporation (PNOC) to break the control by foreigners of our oil industry. 5 PNOC engaged in the
business of refining, marketing, shipping, transporting, and storing petroleum. It acquired ownership of ESSO Philippines and
Filoil to serve as its marketing arm. It bought the controlling shares of Bataan Refining Corporation, the largest refinery in the

country. 6 PNOC later put up its own marketing subsidiary Petrophil. PNOC operated under the business name PETRON
Corporation. For the first time, there was a Filipino presence in the Philippine oil market.

In 1984, President Marcos through Section 8 of Presidential Decree No. 1956, created the Oil Price Stabilization
Fund (OPSF) to cushion the effects of frequent changes in the price of oil caused by exchange rate adjustments or
increase in the world market prices of crude oil and imported petroleum products. The fund is used (1) to reimburse
the oil companies for cost increases in crude oil and imported petroleum products resulting from exchange rate
adjustment and/or increase in world market prices of crude oil, and (2) to reimburse oil companies for cost
underrecovery incurred as a result of the reduction of domestic prices of petroleum products. Under the law, the
OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum
products subject to tax under P.D. No. 1956 arising from exchange rate adjustment,
2. any increase in the tax collection as a result of the lifting of tax exemptions of government
corporations, as may be determined by the Minister of Finance in consultation with the Board of
Energy,
3. any additional amount to be imposed on petroleum products to augment the resources of the fund
through an appropriate order that may be issued by the Board of Energy requiring payment of persons
or companies engaged in the business of importing, manufacturing and/or marketing petroleum
products, or
4. any resulting peso costs differentials in case the actual peso costs paid by oil companies in the
importation of crude oil and petroleum products is less than the peso costs computed using the
reference foreign exchange rate as fixed by the Board of Energy. 7
By 1985, only three (3) oil companies were operating in the country Caltex, Shell and the government-owned
PNOC.
In May, 1987, President Corazon C. Aquino signed Executive Order No. 172 creating the Energy Regulatory Board
to regulate the business of importing, exporting, re-exporting, shipping, transporting, processing, refining, marketing
and distributing energy resources "when warranted and only when public necessity requires." The Board had the
following powers and functions:
1. Fix and regulate the prices of petroleum products;
2. Fix and regulate the rate schedule or prices of piped gas to be charged by duly
franchised gas companies which distribute gas by means of underground pipe
system;
3. Fix and regulate the rates of pipeline concessionaries under the provisions of
R.A. No. 387, as amended . . . ;
4. Regulate the capacities of new refineries or additional capacities of existing
refineries and license refineries that may be organized after the issuance of (E.O.
No. 172) under such terms and conditions as are consistent with the national
interest; and
5. Whenever the Board has determined that there is a shortage of any petroleum
product, or when public interest so requires, it may take such steps as it may
consider necessary, including the temporary adjustment of the levels of prices of
petroleum products and the payment to the Oil Price Stabilization Fund . . . by
persons or entities engaged in the petroleum industry of such amounts as may be
determined by the Board, which may enable the importer to recover its cost of
importation. 8
On December 9, 1992, Congress enacted R.A. No. 7638 which created the Department of Energy to prepare,
integrate, coordinate, supervise and control all plans, programs, projects, and activities of the government in relation
to energy exploration, development, utilization, distribution and conservation. 9 The thrust of the Philippine energy
program under the law was toward privatization of government agencies related to energy, deregulation of the power and
energy industry and reduction of dependency on oil-fired plants. 10 The law also aimed to encourage free and active
participation and investment by the private sector in all energy activities. Section 5(e) of the law states that "at the end of four
(4) years from the effectivity of this Act, the Department shall, upon approval of the President, institute the programs and

timetable of deregulation of appropriate energy projects and activities of the energy industry."

Pursuant to the policies enunciated in R.A. No. 7638, the government approved the privatization of Petron
Corporation in 1993. On December 16, 1993, PNOC sold 40% of its equity in Petron Corporation to the Aramco
Overseas Company.
In March 1996, Congress took the audacious step of deregulating the downstream oil industry. It enacted R.A. No.
8180, entitled the "Downstream Oil Industry Deregulation Act of 1996." Under the deregulated environment, "any
person or entity may import or purchase any quantity of crude oil and petroleum products from a foreign or domestic
source, lease or own and operate refineries and other downstream oil facilities and market such crude oil or use the
same for his own requirement," subject only to monitoring by the Department of
Energy. 11
The deregulation process has two phases: the transition phase and the full deregulation phase. During the transition
phase, controls of the non-pricing aspects of the oil industry were to be lifted. The following were to be
accomplished: (1) liberalization of oil importation, exportation, manufacturing, marketing and distribution, (2)
implementation of an automatic pricing mechanism, (3) implementation of an automatic formula to set margins of
dealers and rates of haulers, water transport operators and pipeline concessionaires, and (4) restructuring of oil
taxes. Upon full deregulation, controls on the price of oil and the foreign exchange cover were to be lifted and the
OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full deregulation of the Downstream Oil Industry through E.O.
No. 372.
The petitions at bar assail the constitutionality of various provisions of R.A No. 8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the annulment of section 5(b) of R.A. No. 8180. Section
5(b) provides:
b) Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be
imposed and collected on imported crude oil at the rate of three percent (3%) and imported refined petroleum
products at the rate of seven percent (7%), except fuel oil and LPG, the rate for which shall be the same as
that for imported crude oil: Provided, That beginning on January 1, 2004 the tariff rate on imported crude oil
and refined petroleum products shall be the same: Provided, further, That this provision may be amended
only by an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil and imported refined petroleum products
violates the equal protection clause. Petitioner contends that the 3%-7% tariff differential unduly favors the three
existing oil refineries and discriminates against prospective investors in the downstream oil industry who do not have
their own refineries and will have to source refined petroleum products from abroad.
Second, that the imposition of different tariff rates does not deregulate the downstream oil industry but instead
controls the oil industry, contrary to the avowed policy of the law. Petitioner avers that the tariff differential between
imported crude oil and imported refined petroleum products bars the entry of other players in the oil industry
because it effectively protects the interest of oil companies with existing refineries. Thus, it runs counter to the
objective of the law "to foster a truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A. No. 8180 violates Section 26(1) Article VI of the
Constitution requiring every law to have only one subject which shall be expressed in its title. Petitioner contends
that the imposition of tariff rates in section 5(b) of R.A. No. 8180 is foreign to the subject of the law which is the
deregulation of the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo, Enrique Garcia, Wigberto Tanada, Flag Human
Rights Foundation, Inc., Freedom from Debt Coalition (FDC) and Sanlakas contest the constitutionality of section 15
of R.A. No. 8180 and E.O. No. 392. Section 15 provides:
Sec. 15. Implementation of Full Deregulation. Pursuant to Section 5(e) of Republic Act No. 7638, the DOE
shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later
than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil
and petroleum products in the world market are declining and when the exchange rate of the peso in relation
to the US dollar is stable. Upon the implementation of the full deregulation as provided herein, the transition

phase is deemed terminated and the following laws are deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the "Department of Energy Act of 1992," provides
that, at the end of four years from its effectivity last December 1992, "the Department (of Energy) shall, upon
approval of the President, institute the programs and time table of deregulation of appropriate energy projects
and activities of the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise known as the "Downstream Oil Industry
Deregulation Act of 1996," provides that "the DOE shall, upon approval of the President, implement full
deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall
time the full deregulation when the prices of crude oil and petroleum products in the world market are
declining and when the exchange rate of the peso in relation to the US dollar is stable;"
WHEREAS, pursuant to the recommendation of the Department of Energy, there is an imperative need to
implement the full deregulation of the downstream oil industry because of the following recent developments:
(i) depletion of the buffer fund on or about 7 February 1997 pursuant to the Energy Regulatory Board's Order
dated 16 January 1997; (ii) the prices of crude oil had been stable at $21-$23 per barrel since October 1996
while prices of petroleum products in the world market had been stable since mid-December of last year.
Moreover, crude oil prices are beginning to soften for the last few days while prices of some petroleum
products had already declined; and (iii) the exchange rate of the peso in relation to the US dollar has been
stable for the past twelve (12) months, averaging at around P26.20 to one US dollar;
WHEREAS, Executive Order No. 377 dated 31 October 1996 provides for an institutional framework for the
administration of the deregulated industry by defining the functions and responsibilities of various government
agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation of the industry will foster a truly competitive
market which can better achieve the social policy objectives of fair prices and adequate, continuous supply of
environmentally-clean and high quality petroleum products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by the powers vested
in me by law, do hereby declare the full deregulation of the downstream oil industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392, petitioners offer the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation of legislative power to the President and the
Secretary of Energy because it does not provide a determinate or determinable standard to guide the Executive
Branch in determining when to implement the full deregulation of the downstream oil industry. Petitioners contend
that the law does not define when it is practicable for the Secretary of Energy to recommend to the President the full
deregulation of the downstream oil industry or when the President may consider it practicable to declare full
deregulation. Also, the law does not provide any specific standard to determine when the prices of crude oil in the
world market are considered to be declining nor when the exchange rate of the peso to the US dollar is considered
stable.
Second, petitioners aver that E.O. No. 392 implementing the full deregulation of the downstream oil industry is
arbitrary and unreasonable because it was enacted due to the alleged depletion of the OPSF fund a condition not
found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the formation of a de facto cartel among the three
existing oil companies Petron, Caltex and Shell in violation of the constitutional prohibition against monopolies,
combinations in restraint of trade and unfair competition.
Respondents, on the other hand, fervently defend the constitutionality of R.A. No. 8180 and E.O. No. 392. In
addition, respondents contend that the issues raised by the petitions are not justiciable as they pertain to the
wisdom of the law. Respondents further aver that petitioners have no locus standi as they did not sustain nor will
they sustain direct injury as a result of the implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On October 7, 1997, the Court ordered the private
respondents oil companies "to maintain the status quo and to cease and desist from increasing the prices of
gasoline and other petroleum fuel products for a period of thirty (30) days . . . subject to further orders as conditions
may warrant."

We shall now resolve the petitions on the merit. The petitions raise procedural and substantive issues bearing on
the constitutionality of R.A. No. 8180 and E.O. No. 392. The procedural issues are: (1) whether or not the petitions
raise a justiciable controversy, and (2) whether or not the petitioners have the standing to assail the validity of the
subject law and executive order. The substantive issues are: (1) whether or not section 5 (b) violates the one title
one subject requirement of the Constitution; (2) whether or not the same section violates the equal protection clause
of the Constitution; (3) whether or not section 15 violates the constitutional prohibition on undue delegation of power;
(4) whether or not E.O. No. 392 is arbitrary and unreasonable; and (5) whether or not R.A. No. 8180 violates the
constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition.
We shall first tackle the procedural issues. Respondents claim that the avalanche of arguments of the petitioners
assail the wisdom of R.A. No. 8180. They aver that deregulation of the downstream oil industry is a policy decision
made by Congress and it cannot be reviewed, much less be reversed by this Court. In constitutional parlance,
respondents contend that the petitions failed to raise a justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes not only the duty of the courts to settle actual
controversies involving rights which are legally demandable and enforceable, but also the duty 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. 12 The courts, as guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. Where a statute
violates the Constitution, it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void.
13 We held in the recent case of Tanada v. Angara: 14
xxx xxx xxx

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged
to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than political. The duty to adjudicate remains to assure that
the supremacy of the Constitution is upheld. Once a controversy as to the application or interpretation of a
constitutional provision is raised before this Court, it becomes a legal issue which the Court is bound by
constitutional mandate to decide.
Even a sideglance at the petitions will reveal that petitioners have raised constitutional issues which deserve the
resolution of this Court in view of their seriousness and their value as precedents. Our statement of facts and
definition of issues clearly show that petitioners are assailing R.A. No. 8180 because its provisions infringe the
Constitution and not because the law lacks wisdom. The principle of separation of power mandates that challenges
on the constitutionality of a law should be resolved in our courts of justice while doubts on the wisdom of a law
should be debated in the halls of Congress. Every now and then, a law may be denounced in court both as bereft of
wisdom and constitutionally infirmed. Such denunciation will not deny this Court of its jurisdiction to resolve the
constitutionality of the said law while prudentially refusing to pass on its wisdom.
The effort of respondents to question the locus standi of petitioners must also fall on barren ground. In language too
lucid to be misunderstood, this Court has brightlined its liberal stance on a petitioner's locus standi where the
petitioner is able to craft an issue of transcendental significance to the people. 15 In Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas, Inc. v. Tan, 16 we stressed:

xxx xxx xxx

Objections to taxpayers' suit for lack of sufficient personality, standing or interest are, however, in the main
procedural matters. Considering the importance to the public of the cases at bar, and in keeping with the
Court's duty, under the 1987 Constitution, to determine whether or not the other branches of government
have kept themselves within the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance
of these petitions.
There is not a dot of disagreement between the petitioners and the respondents on the far reaching importance of
the validity of RA No. 8180 deregulating our downstream oil industry. Thus, there is no good sense in being
hypertechnical on the standing of petitioners for they pose issues which are significant to our people and which
deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360 where petitioner is Senator Tatad, it is
contended that section 5(b) of R.A. No. 8180 on tariff differential violates the provision 17 of the Constitution requiring
every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy,
this Court has adopted a liberal construction of the one title one subject rule. We have consistently ruled 18 that the title

need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject
indicated in the title may contain any number of provisions, no matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the
method and means of carrying out the general subject. 19 We hold that section 5(b) providing for tariff differential is germane
to the subject of R.A. No. 8180 which is the deregulation of the downstream oil industry. The section is supposed to sway
prospective investors to put up refineries in our country and make them rely less on imported petroleum. 20 We shall,
however, return to the validity of this provision when we examine its blocking effect on new entrants to the oil market.

We shall now slide to the substantive issues in G.R. No. 127867. Petitioners assail section 15 of R.A. No. 8180
which fixes the time frame for the full deregulation of the downstream oil industry. We restate its pertinent portion for
emphasis, viz.:
Sec. 15. Implementation of Full Deregulation Pursuant to section 5(e) of Republic Act No. 7638, the DOE
shall, upon approval of the President, implement the full deregulation of the downstream oil industry not later
than March 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil
and petroleum products in the world market are declining and when the exchange rate of the peso in relation
to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of crude oil prices in the world market" and
"stability of the peso exchange rate to the US dollar" are ambivalent, unclear and inconcrete in meaning. They
submit that they do not provide the "determinate or determinable standards" which can guide the President in his
decision to fully deregulate the downstream oil industry. In addition, they contend that E.O. No. 392 which advanced
the date of full deregulation is void for it illegally considered the depletion of the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has long been settled by this Court. As early as 1916 in
Compania General de Tabacos de Filipinas vs. The Board of Public Utility Commissioners, 21 this Court thru, Mr.
Justice Moreland, held that "the true distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under
and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." Over the years, as the
legal engineering of men's relationship became more difficult, Congress has to rely more on the practice of delegating the
execution of laws to the executive and other administrative agencies. Two tests have been developed to determine whether
the delegation of the power to execute laws does not involve the abdication of the power to make law itself. We delineated
the metes and bounds of these tests in Eastern Shipping Lines, Inc. VS. POEA, 22 thus:

There are two accepted tests to determine whether or not there is a valid delegation of legislative power, viz:
the completeness test and the sufficient standard test. Under the first test, the law must be complete in all its
terms and conditions when it leaves the legislative such that when it reaches the delegate the only thing he
will have to do is to enforce it. Under the sufficient standard test, there must be adequate guidelines or
limitations in the law to map out the boundaries of the delegate's authority and prevent the delegation from
running riot. Both tests are intended to prevent a total transference of legislative authority to the delegate,
who is not allowed to step into the shoes of the legislature and exercise a power essentially legislative.
The validity of delegating legislative power is now a quiet area in our constitutional landscape. As sagely observed,
delegation of legislative power has become an inevitability in light of the increasing complexity of the task of
government. Thus, courts bend as far back as possible to sustain the constitutionality of laws which are assailed as
unduly delegating legislative powers. Citing Hirabayashi v. United States 23 as authority, Mr. Justice Isagani A. Cruz
states "that even if the law does not expressly pinpoint the standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional infirmity." 24

Given the groove of the Court's rulings, the attempt of petitioners to strike down section 15 on the ground of undue
delegation of legislative power cannot prosper. Section 15 can hurdle both the completeness test and the sufficient
standard test. It will be noted that Congress expressly provided in R.A. No. 8180 that full deregulation will start at the
end of March 1997, regardless of the occurrence of any event. Full deregulation at the end of March 1997 is
mandatory and the Executive has no discretion to postpone it for any purported reason. Thus, the law is complete
on the question of the final date of full deregulation. The discretion given to the President is to advance the date of
full deregulation before the end of March 1997. Section 15 lays down the standard to guide the judgment of the
President he is to time it as far as practicable when the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso in relation to the US dollar is stable.
Petitioners contend that the words "as far as practicable," "declining" and "stable" should have been defined in R.A.
No. 8180 as they do not set determinate or determinable standards. The stubborn submission deserves scant
consideration. The dictionary meanings of these words are well settled and cannot confuse men of reasonable
intelligence. Webster defines "practicable" as meaning possible to practice or perform, "decline" as meaning to take
a downward direction, and "stable" as meaning firmly established. 25 The fear of petitioners that these words will result

in the exercise of executive discretion that will run riot is thus groundless. To be sure, the Court has sustained the validity of
similar, if not more general standards in other cases. 26

It ought to follow that the argument that E.O. No. 392 is null and void as it was based on indeterminate standards
set by R.A. 8180 must likewise fail. If that were all to the attack against the validity of E.O. No. 392, the issue need
not further detain our discourse. But petitioners further posit the thesis that the Executive misapplied R.A. No. 8180
when it considered the depletion of the OPSF fund as a factor in fully deregulating the downstream oil industry in
February 1997. A perusal of section 15 of R.A. No. 8180 will readily reveal that it only enumerated two factors to be
considered by the Department of Energy and the Office of the President, viz.: (1) the time when the prices of crude
oil and petroleum products in the world market are declining, and (2) the time when the exchange rate of the peso in
relation to the US dollar is stable. Section 15 did not mention the depletion of the OPSF fund as a factor to be given
weight by the Executive before ordering full deregulation. On the contrary, the debates in Congress will show that
some of our legislators wanted to impose as a pre-condition to deregulation a showing that the OPSF fund must not
be in deficit. 27 We therefore hold that the Executive department failed to follow faithfully the standards set by R.A. No. 8180
when it considered the extraneous factor of depletion of the OPSF fund. The misappreciation of this extra factor cannot be
justified on the ground that the Executive department considered anyway the stability of the prices of crude oil in the world
market and the stability of the exchange rate of the peso to the dollar. By considering another factor to hasten full
deregulation, the Executive department rewrote the standards set forth in R.A. 8180. The Executive is bereft of any right to
alter either by subtraction or addition the standards set in R.A. No. 8180 for it has no power to make laws. To cede to the
Executive the power to make law is to invite tyranny, indeed, to transgress the principle of separation of powers. The exercise
of delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms
of agency. In the cases at bar, the Executive co-mingled the factor of depletion of the OPSF fund with the factors of decline of
the price of crude oil in the world market and the stability of the peso to the US dollar. On the basis of the text of E.O. No.
392, it is impossible to determine the weight given by the Executive department to the depletion of the OPSF fund. It could
well be the principal consideration for the early deregulation. It could have been accorded an equal significance. Or its
importance could be nil. In light of this uncertainty, we rule that the early deregulation under E.O. No. 392 constitutes a
misapplication of R.A. No. 8180.

We now come to grips with the contention that some provisions of R.A. No. 8180 violate section 19 of Article XII of
the 1987 Constitution. These provisions are:
(1) Section 5 (b) which states "Any law to the contrary notwithstanding and starting with the effectivity of
this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of three percent (3%) and
imported refined petroleum products at the rate of seven percent (7%) except fuel oil and LPG, the rate for
which shall be the same as that for imported crude oil. Provided, that beginning on January 1, 2004 the tariff
rate on imported crude oil and refined petroleum products shall be the same. Provided, further, that this
provision may be amended only by an Act of Congress."
(2) Section 6 which states "To ensure the security and continuity of petroleum crude and products supply,
the DOE shall require the refiners and importers to maintain a minimum inventory equivalent to ten percent
(10%) of their respective annual sales volume or forty (40) days of supply, whichever is lower," and
(3) Section 9 (b) which states "To ensure fair competition and prevent cartels and monopolies in the
downstream oil industry, the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell any product at a price unreasonably
below the industry average cost so as to attract customers to the detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution allegedly violated by the aforestated provisions of
R.A. No. 8180 mandates: "The State shall regulate or prohibit monopolies when the public interest so requires. No
combinations in restraint of trade or unfair competition shall be allowed."
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting in the
exclusive right or power to carry on a particular business or trade, manufacture a particular article, or control the
sale or the whole supply of a particular commodity. It is a form of market structure in which one or only a few firms
dominate the total sales of a product or service. 28 On the other hand, a combination in restraint of trade is an agreement
or understanding between two or more persons, in the form of a contract, trust, pool, holding company, or other form of
association, for the purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity,
controlling its, production, distribution and price, or otherwise interfering with freedom of trade without statutory authority. 29
Combination in restraint of trade refers to the means while monopoly refers to the end. 30

Article 186 of the Revised Penal Code and Article 28 of the New Civil Code breathe life to this constitutional policy.
Article 186 of the Revised Penal Code penalizes monopolization and creation of combinations in restraint of

trade, 31 while Article 28 of the New Civil Code makes any person who shall engage in unfair competition liable for
damages. 32

Respondents aver that sections 5(b), 6 and 9(b) implement the policies and objectives of R.A. No. 8180. They
explain that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress that
the inventory requirement is meant to guaranty continuous domestic supply of petroleum and to discourage fly-bynight operators. They also submit that the prohibition against predatory pricing is intended to protect prospective
entrants. Respondents manifested to the Court that new players have entered the Philippines after deregulation and
have now captured 3% 5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be decided in light of the letter and spirit of our
Constitution, especially section 19, Article XII. Beyond doubt, the Constitution committed us to the free enterprise
system but it is a system impressed with its own distinctness. Thus, while the Constitution embraced free enterprise
as an economic creed, it did not prohibit per se the operation of monopolies which can, however, be regulated in the
public interest. 33 Thus too, our free enterprise system is not based on a market of pure and unadulterated competition
where the State pursues a strict hands-off policy and follows the let-the-devil devour the hindmost rule. Combinations in
restraint of trade and unfair competitions are absolutely proscribed and the proscription is directed both against the State as
well as the private sector. 34 This distinct free enterprise system is dictated by the need to achieve the goals of our national
economy as defined by section 1, Article XII of the Constitution which are: more equitable distribution of opportunities,
income and wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of life for all, especially the underprivileged. It also
calls for the State to protect Filipino enterprises against unfair competition and trade practices.

Section 19, Article XII of our Constitution is anti-trust in history and in spirit. It espouses competition. The desirability
of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair
competition, and the reason for regulation of unmitigated monopolies. Competition is thus the underlying principle of
section 19, Article XII of our Constitution which cannot be violated by R.A. No. 8180. We subscribe to the
observation of Prof. Gellhorn that the objective of anti-trust law is "to assure a competitive economy, based upon the
belief that through competition producers will strive to satisfy consumer wants at the lowest price with the sacrifice of
the fewest resources. Competition among producers allows consumers to bid for goods and services, and thus
matches their desires with society's opportunity costs." 35 He adds with appropriateness that there is a reliance upon
"the operation of the 'market' system (free enterprise) to decide what shall be produced, how resources shall be allocated in
the production process, and to whom the various products will be distributed. The market system relies on the consumer to
decide what and how much shall be produced, and on competition, among producers to determine who will manufacture it."

Again, we underline in scarlet that the fundamental principle espoused by section 19, Article XII of the Constitution is
competition for it alone can release the creative forces of the market. But the competition that can unleash these
creative forces is competition that is fighting yet is fair. Ideally, this kind of competition requires the presence of not
one, not just a few but several players. A market controlled by one player (monopoly) or dominated by a handful of
players (oligopoly) is hardly the market where honest-to-goodness competition will prevail. Monopolistic or
oligopolistic markets deserve our careful scrutiny and laws which barricade the entry points of new players in the
market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to examine whether the provisions of R.A. No. 8180
on tariff differential, inventory reserves, and predatory prices imposed substantial barriers to the entry and exit of
new players in our downstream oil industry. If they do, they have to be struck down for they will necessarily inhibit
the formation of a truly competitive market. Contrariwise, if they are insignificant impediments, they need not be
stricken down.
In the cases at bar, it cannot be denied that our downstream oil industry is operated and controlled by an oligopoly, a
foreign oligopoly at that. Petron, Shell and Caltex stand as the only major league players in the oil market. All other
players belong to the lilliputian league. As the dominant players, Petron, Shell and Caltex boast of existing refineries
of various capacities. The tariff differential of 4% therefore works to their immense benefit. Yet, this is only one edge
of the tariff differential. The other edge cuts and cuts deep in the heart of their competitors. It erects a high barrier to
the entry of new players. New players that intend to equalize the market power of Petron, Shell and Caltex by
building refineries of their own will have to spend billions of pesos. Those who will not build refineries but compete
with them will suffer the huge disadvantage of increasing their product cost by 4%. They will be competing on an
uneven field. The argument that the 4% tariff differential is desirable because it will induce prospective players to
invest in refineries puts the cart before the horse. The first need is to attract new players and they cannot be
attracted by burdening them with heavy disincentives. Without new players belonging to the league of Petron, Shell
and Caltex, competition in our downstream oil industry is an idle dream.
The provision on inventory widens the balance of advantage of Petron, Shell and Caltex against prospective new
players. Petron, Shell and Caltex can easily comply with the inventory requirement of R.A. No. 8180 in view of their

existing storage facilities. Prospective competitors again will find compliance with this requirement difficult as it will
entail a prohibitive cost. The construction cost of storage facilities and the cost of inventory can thus scare
prospective players. Their net effect is to further occlude the entry points of new players, dampen competition and
enhance the control of the market by the three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which is defined as ". . . selling or offering to sell any product
at a price unreasonably below the industry average cost so as to attract customers to the detriment of competitors."
Respondents contend that this provision works against Petron, Shell and Caltex and protects new entrants. The ban
on predatory pricing cannot be analyzed in isolation. Its validity is interlocked with the barriers imposed by R.A. No.
8180 on the entry of new players. The inquiry should be to determine whether predatory pricing on the part of the
dominant oil companies is encouraged by the provisions in the law blocking the entry of new players. Text-writer
Hovenkamp, 36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits in the
future. The monopoly profits will never materialize, however, if the market is flooded with new entrants as
soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the
market contains significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the inventory requirement are significant barriers which discourage
new players to enter the market. Considering these significant barriers established by R.A. No. 8180 and the lack of
players with the comparable clout of PETRON, SHELL and CALTEX, the temptation for a dominant player to engage
in predatory pricing and succeed is a chilling reality. Petitioners' charge that this provision on predatory pricing is
anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new players have entered the market since deregulation.
A scrutiny of the list of the alleged new players will, however, reveal that not one belongs to the class and category
of PETRON, SHELL and CALTEX. Indeed, there is no showing that any of these new players intends to install any
refinery and effectively compete with these dominant oil companies. In any event, it cannot be gainsaid that the new
players could have been more in number and more impressive in might if the illegal entry barriers in R.A. No. 8180
were not erected.
We come to the final point. We now resolve the total effect of the untimely deregulation, the imposition of 4% tariff
differential on imported crude oil and refined petroleum products, the requirement of inventory and the prohibition on
predatory pricing on the constitutionality of R.A. No. 8180. The question is whether these offending provisions can
be individually struck down without invalidating the entire R.A. No. 8180. The ruling case law is well stated by author
Agpalo, 37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is
valid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a
separability clause in a statute creates the presumption that the legislature intended separability, rather than
complete nullity of the statute. To justify this result, the valid portion must be so far independent of the invalid
portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it
could not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid
statute, which carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a statute are so mutually dependent and
connected, as conditions, considerations, inducements, or compensations for each other, as to warrant a
belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the
parts of the statute dependent, conditional, or connected with one another, the legislature intended the statute
to be carried out as a whole and would not have enacted it if one part is void, in which case if some parts are
unconstitutional, all the other provisions thus dependent, conditional, or connected must fall with them.
R.A. No. 8180 contains a separability clause. Section 23 provides that "if for any reason, any section or provision of
this Act is declared unconstitutional or invalid, such parts not affected thereby shall remain in full force and effect."
This separability clause notwithstanding, we hold that the offending provisions of R.A. No. 8180 so permeate its
essence that the entire law has to be struck down. The provisions on tariff differential, inventory and predatory
pricing are among the principal props of R.A. No. 8180. Congress could not have deregulated the downstream oil
industry without these provisions. Unfortunately, contrary to their intent, these provisions on tariff differential,
inventory and predatory pricing inhibit fair competition, encourage monopolistic power and interfere with the free
interaction of market forces. R.A. No. 8180 needs provisions to vouchsafe free and fair competition. The need for

these vouchsafing provisions cannot be overstated. Before deregulation, PETRON, SHELL and CALTEX had no
real competitors but did not have a free run of the market because government controls both the pricing and nonpricing aspects of the oil industry. After deregulation, PETRON, SHELL and CALTEX remain unthreatened by real
competition yet are no longer subject to control by government with respect to their pricing and non-pricing
decisions. The aftermath of R.A. No. 8180 is a deregulated market where competition can be corrupted and where
market forces can be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people have not escaped Congress. A lot of our leading
legislators have come out openly with bills seeking the repeal of these odious and offensive provisions in R.A. No.
8180. In the Senate, Senator Freddie Webb has filed S.B. No. 2133 which is the result of the hearings conducted by
the Senate Committee on Energy. The hearings revealed that (1) there was a need to level the playing field for the
new entrants in the downstream oil industry, and (2) there was no law punishing a person for selling petroleum
products at unreasonable prices. Senator Alberto G. Romulo also filed S.B. No. 2209 abolishing the tariff differential
beginning January 1, 1998. He declared that the amendment ". . . would mean that instead of just three (3) big oil
companies there will be other major oil companies to provide more competitive prices for the market and the
consuming public." Senator Heherson T . Alvarez, one of the principal proponents of R.A. No. 8180, also filed S.B.
No. 2290 increasing the penalty for violation of its section 9. It is his opinion as expressed in the explanatory note of
the bill that the present oil companies are engaged in cartelization despite R.A. No. 8180, viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in February 1997, there have been eight (8) fuel price
adjustments made by the three oil majors, namely: Caltex Philippines, Inc.; Petron Corporation; and Pilipinas
Shell Petroleum Corporation. Very noticeable in the price adjustments made, however, is the uniformity in the
pump prices of practically all petroleum products of the three oil companies. This, despite the fact, that their
selling rates should be determined by a combination of any of the following factors: the prevailing peso-dollar
exchange rate at the time payment is made for crude purchases, sources of crude, and inventory levels of
both crude and refined petroleum products. The abovestated factors should have resulted in different, rather
than identical prices.
The fact that the three (3) oil companies' petroleum products are uniformly priced suggests collusion,
amounting to cartelization, among Caltex Philippines, Inc., Petron Corporation and Pilipinas Shell Petroleum
Corporation to fix the prices of petroleum products in violation of paragraph (a), Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present and prospective players in the downstream oil
industry conduct their business with conscience and propriety, cartel-like activities ought to be severely
penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a uniform tariff rate on imported crude oil and
refined petroleum products. In the explanatory note of the bill, he declared in no uncertain terms that ". . . the
present set-up has raised serious public concern over the way the three oil companies have uniformly adjusted the
prices of oil in the country, an indication of a possible existence of a cartel or a cartel-like situation within the
downstream oil industry. This situation is mostly attributed to the foregoing provision on tariff differential, which has
effectively discouraged the entry of new players in the downstream oil industry."
In the House of Representatives, the moves to rehabilitate R.A. No. 8180 are equally feverish. Representative
Leopoldo E. San Buenaventura has filed H.B. No. 9826 removing the tariff differential for imported crude oil and
imported refined petroleum products. In the explanatory note of the bill, Rep. Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between imported crude oil and imported refined
petroleum products, unwittingly provided a built-in-advantage for the three existing oil refineries in the country
and eliminating competition which is a must in a free enterprise economy. Moreover, it created a disincentive
for other players to engage even initially in the importation and distribution of refined petroleum products and
ultimately in the putting up of refineries. This tariff differential virtually created a monopoly of the downstream
oil industry by the existing three oil companies as shown by their uniform and capricious pricing of their
products since this law took effect, to the great disadvantage of the consuming public.
Thus, instead of achieving the desired effects of deregulation, that of free enterprise and a level playing field
in the downstream oil industry, R.A. 8180 has created an environment conducive to cartelization, unfavorable,
increased, unrealistic prices of petroleum products in the country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to prevent collusion among the present oil companies
by strengthening the oversight function of the government, particularly its ability to subject to a review any

adjustment in the prices of gasoline and other petroleum products. In the explanatory note of the bill, Rep. Punzalan,
Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the oversight function of government, particularly its ability
to review the prices set for gasoline and other petroleum products. It grants the Energy Regulatory Board
(ERB) the authority to review prices of oil and other petroleum products, as may be petitioned by a person,
group or any entity, and to subsequently compel any entity in the industry to submit any and all documents
relevant to the imposition of new prices. In cases where the Board determines that there exist collusion,
economic conspiracy, unfair trade practice, profiteering and/or overpricing, it may take any step necessary to
protect the public, including the readjustment of the prices of petroleum products. Further, the Board may also
impose the fine and penalty of imprisonment, as prescribed in Section 9 of R.A. 8180, on any person or entity
from the oil industry who is found guilty of such prohibited acts.
By doing all of the above, the measure will effectively provide Filipino consumers with a venue where their
grievances can be heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the price-setting process more transparent
and making it easier to prosecute those who perpetrate such prohibited acts as collusion, overpricing,
economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy an omission in R.A. No. 8180 where there is no
agency in government that determines what is "reasonable" increase in the prices of oil products. Representative
Dente O. Tinga, one of the principal sponsors of R.A. No. 8180, filed H.B. No. 10057 to strengthen its anti-trust
provisions. He elucidated in its explanatory note:
xxx xxx xxx
The definition of predatory pricing, however, needs to be tightened up particularly with respect to the definitive
benchmark price and the specific anti-competitive intent. The definition in the bill at hand which was taken
from the Areeda-Turner test in the United States on predatory pricing resolves the questions. The definition
reads, "Predatory pricing means selling or offering to sell any oil product at a price below the average variable
cost for the purpose of destroying competition, eliminating a competitor or discouraging a competitor from
entering the market."
The appropriate actions which may be resorted to under the Rules of Court in conjunction with the oil
deregulation law are adequate. But to stress their availability and dynamism, it is a good move to incorporate
all the remedies in the law itself. Thus, the present bill formalizes the concept of government intervention and
private suits to address the problem of antitrust violations. Specifically, the government may file an action to
prevent or restrain any act of cartelization or predatory pricing, and if it has suffered any loss or damage by
reason of the antitrust violation it may recover damages. Likewise, a private person or entity may sue to
prevent or restrain any such violation which will result in damage to his business or property, and if he has
already suffered damage he shall recover treble damages. A class suit may also be allowed.
To make the DOE Secretary more effective in the enforcement of the law, he shall be given additional powers
to gather information and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a more unforgiving view of R.A. No. 8180. He
wants it completely repealed. He explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream Oil Industry Deregulation was discussed
and debated upon in the plenary session prior to its approval into law, there aren't any new players or
investors in the oil industry. Thus, resulting in practically a cartel or monopoly in the oil industry by the three
(3) big oil companies, Caltex, Shell and Petron. So much so, that with the deregulation now being partially
implemented, the said oil companies have succeeded in increasing the prices of most of their petroleum
products with little or no interference at all from the government. In the month of August, there was an
increase of Fifty centavos (50) per liter by subsidizing the same with the OPSF, this is only temporary as in
March 1997, or a few months from now, there will be full deregulation (Phase II) whereby the increase in the
prices of petroleum products will be fully absorbed by the consumers since OPSF will already be abolished by
then. Certainly, this would make the lives of our people, especially the unemployed ones, doubly difficult and
unbearable.

The much ballyhooed coming in of new players in the oil industry is quite remote considering that these
prospective investors cannot fight the existing and well established oil companies in the country today,
namely, Caltex, Shell and Petron. Even if these new players will come in, they will still have no chance to
compete with the said three (3) existing big oil companies considering that there is an imposition of oil tariff
differential of 4% between importation of crude oil by the said oil refineries paying only 3% tariff rate for the
said importation and 7% tariff rate to be paid by businessmen who have no oil refineries in the Philippines but
will import finished petroleum/oil products which is being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering as a result of unmitigated increase in oil
products due to deregulation, it is a must that the Downstream Oil Industry Deregulation Act of 1996, or R.A.
8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for an immediate and comprehensive review of R.A.
No. 8180 to prevent the downpour of its ill effects on the people. Thus, S. Res. No. 574 was filed by Senator Gloria
M. Macapagal entitled Resolution "Directing the Committee on Energy to Inquire Into The Proper Implementation of
the Deregulation of the Downstream Oil Industry and Oil Tax Restructuring As Mandated Under R.A. Nos. 8180 and
8184, In Order to Make The Necessary Corrections In the Apparent Misinterpretation Of The Intent And Provision Of
The Laws And Curb The Rising Tide Of Disenchantment Among The Filipino Consumers And Bring About The Real
Intentions And Benefits Of The Said Law." Senator Blas P. Ople filed S. Res. No. 664 entitled resolution "Directing
the Committee on Energy To Conduct An Inquiry In Aid Of Legislation To Review The Government's Oil
Deregulation Policy In Light Of The Successive Increases In Transportation, Electricity And Power Rates, As well As
Of Food And Other Prime Commodities And Recommend Appropriate Amendments To Protect The Consuming
Public." Senator Ople observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy Regulatory Board (ERB) has imposed
successive increases in oil prices which has triggered increases in electricity and power rates, transportation
fares, as well as in prices of food and other prime commodities to the detriment of our people, particularly the
poor;
WHEREAS, the new players that were expected to compete with the oil cartel-Shell, Caltex and Petron-have
not come in;
WHEREAS, it is imperative that a review of the oil deregulation policy be made to consider appropriate
amendments to the existing law such as an extension of the transition phase before full deregulation in order
to give the competitive market enough time to develop;
WHEREAS, the review can include the advisability of providing some incentives in order to attract the entry of
new oil companies to effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the institutional framework for full deregulation
of the oil industry as mandated under Executive Order No. 377 issued by President Ramos last October 31,
1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution "Directing the Committees on Energy and Public
Services In Aid Of Legislation To Assess The Immediate Medium And Long Term Impact of Oil Deregulation On Oil
Prices And The Economy." Among the reasons for the resolution is the finding that "the requirement of a 40-day
stock inventory effectively limits the entry of other oil firms in the market with the consequence that instead of going
down oil prices will rise."
Parallel resolutions have been filed in the House of Representatives. Representative Dante O. Tinga filed H. Res.
No. 1311 "Directing The Committee on Energy To Conduct An Inquiry, In Aid of Legislation, Into The Pricing Policies
And Decisions Of The Oil Companies Since The Implementation of Full Deregulation Under the Oil Deregulation Act
(R.A. No. 8180) For the Purpose of Determining In the Context Of The Oversight Functions Of Congress Whether
The Conduct Of The Oil Companies, Whether Singly Or Collectively, Constitutes Cartelization Which Is A Prohibited
Act Under R.A. No. 8180, And What Measures Should Be Taken To Help Ensure The Successful Implementation Of
The Law In Accordance With Its Letter And Spirit, Including Recommending Criminal Prosecution Of the Officers
Concerned Of the Oil Companies If Warranted By The Evidence, And For Other Purposes." Representatives Marcial
C. Punzalan, Jr. Dante O. Tinga and Antonio E. Bengzon III filed H.R. No. 894 directing the House Committee on
Energy to inquire into the proper implementation of the deregulation of the downstream oil industry. House
Resolution No. 1013 was also filed by Representatives Edcel C. Lagman, Enrique T . Garcia, Jr. and Joker P.
Arroyo urging the President to immediately suspend the implementation of E.O. No. 392.
In recent memory there is no law enacted by the legislature afflicted with so much constitutional deformities as R.A.

No. 8180. Yet, R.A. No. 8180 deals with oil, a commodity whose supply and price affect the ebb and flow of the
lifeblood of the nation. Its shortage of supply or a slight, upward spiral in its price shakes our economic foundation.
Studies show that the areas most impacted by the movement of oil are food manufacture, land transport, trade,
electricity and water. 38 At a time when our economy is in a dangerous downspin, the perpetuation of R.A. No. 8180
threatens to multiply the number of our people with bent backs and begging bowls. R.A. No. 8180 with its anti-competition
provisions cannot be allowed by this Court to stand even while Congress is working to remedy its defects.

The Court, however, takes note of the plea of PETRON, SHELL and CALTEX to lift our restraining order to enable
them to adjust upward the price of petroleum and petroleum products in view of the plummeting value of the peso.
Their plea, however, will now have to be addressed to the Energy Regulatory Board as the effect of the declaration
of unconstitutionality of R.A. No. 8180 is to revive the former laws it repealed. 39 The length of our return to the regime
of regulation depends on Congress which can fasttrack the writing of a new law on oil deregulation in accord with the
Constitution.

With this Decision, some circles will chide the Court for interfering with an economic decision of Congress. Such
criticism is charmless for the Court is annulling R.A. No. 8180 not because it disagrees with deregulation as an
economic policy but because as cobbled by Congress in its present form, the law violates the Constitution. The right
call therefor should be for Congress to write a new oil deregulation law that conforms with the Constitution and not
for this Court to shirk its duty of striking down a law that offends the Constitution. Striking down R.A. No. 8180 may
cost losses in quantifiable terms to the oil oligopolists. But the loss in tolerating the tampering of our Constitution is
not quantifiable in pesos and centavos. More worthy of protection than the supra-normal profits of private
corporations is the sanctity of the fundamental principles of the Constitution. Indeed when confronted by a law
violating the Constitution, the Court has no option but to strike it down dead. Lest it is missed, the Constitution is a
covenant that grants and guarantees both the political and economic rights of the people. The Constitution
mandates this Court to be the guardian not only of the people's political rights but their economic rights as well. The
protection of the economic rights of the poor and the powerless is of greater importance to them for they are
concerned more with the exoterics of living and less with the esoterics of liberty. Hence, for as long as the
Constitution reigns supreme so long will this Court be vigilant in upholding the economic rights of our people
especially from the onslaught of the powerful. Our defense of the people's economic rights may appear heartless
because it cannot be half-hearted.
IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is declared unconstitutional and E.O. No. 372 void.
SO ORDERED.
Regalado, Davide, Jr., Romero, Bellosillo and Vitug, JJ., concur.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.

Separate Opinions

PANGANIBAN, J., concurring:

I concur with the lucid and convincing ponencia of Mr. Justice Reynato S. Puno. I write to stress two points:
1. The Issue Is Whether Oil Companies May Unilaterally
Fix Prices, Not Whether This Court May
Interfere in Economic Questions
With the issuance of the status quo order on October 7, 1997 requiring the three respondent oil companies
Petron, Shell and Caltex "to cease and desist from increasing the prices of gasoline and other petroleum
fuel products for a period of thirty (30) days," the Court has been accused of interfering in purely economic
policy matters 1 or, worse, of arrogating unto itself price-regulatory powers. 2 Let it be emphasized that we have no
desire nay, we have no power to intervene in, to change or to repeal the laws of economics, in the same manner
that we cannot and will not nullify or invalidate the laws of physics or chemistry.

EN BANC
BAI SANDRA S. A. SEMA, G.R. No. 177597
Petitioner,
- versus COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,
Respondents.
x------------------------x
PERFECTO F. MARQUEZ, G.R. No. 178628
Petitioner,
Present:
PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
COMMISSION ON ELECTIONS, Promulgated:

Respondent. July 16, 2008

DECISION

x--------------------------------------------------x

CARPIO, J.:
The Case

[1]
These consolidated petitions seek to annul Resolution No. 7902, dated 10 May 2007, of
the Commission on Elections (COMELEC) treating Cotabato City as part of the legislative
[2]
district of the Province of Shariff Kabunsuan.

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for
the Province of Maguindanao. The first legislative district consists of Cotabato City and
[3]
eight municipalities.
Maguindanao forms part of the Autonomous Region in Muslim
Mindanao (ARMM), created under its Organic Act, Republic Act No. 6734 (RA 6734), as
[4]
amended by Republic Act No. 9054 (RA 9054). Although under the Ordinance, Cotabato
City forms part of Maguindanaos first legislative district, it is not part of the ARMM but of
Region XII, having voted against its inclusion in the ARMM in the plebiscite held in
November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its
[5]
power to create provinces under Section 19, Article VI of RA 9054,
enacted Muslim
Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff

Kabunsuan composed of the eight municipalities in the first district of Maguindanao. MMA
Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog,
Parang, Sultan Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of
Maguindanao and constituted into a distinct and independent province, which is hereby
created, to be known as the Province of Shariff Kabunsuan.

xxxx
Sec. 5. The corporate existence of this province shall commence upon the appointment
by the Regional Governor or election of the governor and majority of the regular members of
the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the Province of Maguindanao shall continue to
serve their unexpired terms in the province that they will choose or where they are residents:
Provided, that where an elective position in both provinces becomes vacant as a consequence
of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial
officials shall have preference for appointment to a higher elective vacant position and for the
time being be appointed by the Regional Governor, and shall hold office until their successors
shall have been elected and qualified in the next local elections; Provided, further, that they
shall continue to receive the salaries they are receiving at the time of the approval of this Act
until the new readjustment of salaries in accordance with law. Provided, furthermore, that
there shall be no diminution in the number of the members of the Sangguniang Panlalawigan
of the mother province.
Except as may be provided by national law, the existing legislative district, which includes
Cotabato as a part thereof, shall remain.

[6]
Later, three new municipalities
were carved out of the original nine municipalities
constituting Shariff Kabunsuan, bringing its total number of municipalities to 11. Thus,
what was left of Maguindanao were the municipalities constituting its second legislative
district. Cotabato City, although part of Maguindanaos first legislative district, is not part of
the Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held
on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed
Resolution No. 3999 requesting the COMELEC to clarify the status of Cotabato City in
view of the conversion of the First District of Maguindanao into a regular province under

MMA Act 201.

In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6
March 2007 "maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in
the First Legislative District of Maguindanao. Resolution No. 07-0407, which adopted the
recommendation of the COMELECs Law Department under a Memorandum dated 27
[7]
provides in pertinent parts:
February 2007,

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department that pending the enactment of the appropriate law
by Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in
the First Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated
on 29 March 2007 Resolution No. 7845 stating that Maguindanaos first legislative district is
[8]

composed only of Cotabato City because of the enactment of MMA Act 201.

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions,
amending Resolution No. 07-0407 by renaming the legislative district in question as Shariff
Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with
[9]
Cotabato City).

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for
Representative of Shariff Kabunsuan with Cotabato City, prayed for the nullification of
COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in
Cotabato City for that office. Sema contended that Shariff Kabunsuan is entitled to one
[10]
representative in Congress under Section 5 (3), Article VI of the Constitution
and
[11]
Section 3 of the Ordinance appended to the Constitution.
Thus, Sema asserted that the
COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902
which maintained the status quo in Maguindanaos first legislative district despite the
COMELECs earlier directive in Resolution No. 7845 designating Cotabato City as the lone
[12]
Sema further

component of Maguindanaos reapportioned first legislative district.

claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress power to
create or reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose
not to reach the merits of the case and merely contended that (1) Sema wrongly availed of
the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC
issued the same in the exercise of its administrative, not quasi-judicial, power and (2) Semas
prayer for the writ of prohibition in G.R. No. 177597 became moot with the proclamation of
respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007 as representative
of the legislative district of Shariff Kabunsuan Province with Cotabato City.
In his Comment, respondent Dilangalen countered that Sema is estopped from questioning
COMELEC Resolution No. 7902 because in her certificate of candidacy filed on 29 March
2007, Sema indicated that she was seeking election as representative of Shariff Kabunsuan
including Cotabato City. Respondent Dilangalen added that COMELEC Resolution No.
7902 is constitutional because it did not apportion a legislative district for Shariff
Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed
Maguindanaos first legislative district. Respondent Dilangalen further claimed that the
COMELEC could not reapportion Maguindanaos first legislative district to make Cotabato
City its sole component unit as the power to reapportion legislative districts lies exclusively
with Congress, not to mention that Cotabato City does not meet the minimum population
requirement under Section 5 (3), Article VI of the Constitution for the creation of a
[13]
legislative district within a city.

Sema filed a Consolidated Reply controverting the matters raised in respondents Comments
and reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No.
7902.
In the Resolution of 4 September 2007, the Court required the parties in G.R. No.
177597 to comment on the issue of whether a province created by the ARMM Regional
Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a legislative district for

such new province. The parties submitted their compliance as follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the
[14]
Court in Felwa v. Salas
stated that when a province is created by statute, the
corresponding representative district comes into existence neither by authority of that statute
which cannot provide otherwise nor by apportionment, but by operation of the Constitution,
without a reapportionment; (b) Section 462 of Republic Act No. 7160 (RA 7160) affirms the
apportionment of a legislative district incident to the creation of a province; and (c) Section
5 (3), Article VI of the Constitution and Section 3 of the Ordinance appended to the
Constitution mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier
stance on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with
Sema, contending that Section 5 (3), Article VI of the Constitution is self-executing. Thus,
every new province created by the ARMM Regional Assembly is ipso facto entitled to one
representative in the House of Representatives even in the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following
grounds: (a) the province contemplated in Section 5 (3), Article VI of the Constitution is
one that is created by an act of Congress taking into account the provisions in RA 7160 on
the creation of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM
Regional Assembly the power to enact measures relating to national elections, which
encompasses the apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every province the ARMM Regional
Assembly creates will lead to the disproportionate representation of the ARMM in the
House of Representatives as the Regional Assembly can create provinces without regard to
the requirements in Section 461 of RA 7160; and (d) Cotabato City, which has a population
of less than 250,000, is not entitled to a representative in the House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral
arguments on the following issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to create provinces, is

constitutional; and (2) if in the affirmative, whether a province created under Section 19,
Article VI of RA 9054 is entitled to one representative in the House of Representatives
[15]
without need of a national law creating a legislative district for such new province.
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No.
[16]
177597 filed their respective Memoranda on the issues raised in the oral arguments.
On
the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R.
No. 177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a
valid delegation by Congress to the ARMM of the power to create provinces under Section
20 (9), Article X of the Constitution granting to the autonomous regions, through their
organic acts, legislative powers over other matters as may be authorized by law for the
promotion of the general welfare of the people of the region and (b) as an amendment to
[17]
Section 6 of RA 7160.
However, Sema concedes that, if taken literally, the grant in
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to
prescribe standards lower than those mandated in RA 7160 in the creation of provinces
[18]
contravenes Section 10, Article X of the Constitution.
Thus, Sema proposed that
Section 19 should be construed as prohibiting the Regional Assembly from prescribing
[19]
standards x x x that do not comply with the minimum criteria under RA 7160.

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is

unconstitutional on the following grounds: (a) the power to create provinces was not among
those granted to the autonomous regions under Section 20, Article X of the Constitution and
(b) the grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of
the power to prescribe standards lower than those mandated in Section 461 of RA 7160 on
the creation of provinces contravenes Section 10, Article X of the Constitution and the
Equal Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen

(thus effectively abandoning the position the COMELEC adopted in its Compliance with
the Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054
[20]
is unconstitutional because (a) it contravenes Section 10 and Section 6,
Article X of the
Constitution and (b) the power to create provinces was withheld from the autonomous
regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA

9054 is entitled to one representative in the House of Representatives without need of a
national law creating a legislative district for such new province, Sema and respondent
Dilangalen reiterated in their Memoranda the positions they adopted in their Compliance
with the Resolution of 4 September 2007. The COMELEC deemed it unnecessary to submit
its position on this issue considering its stance that Section 19, Article VI of RA 9054 is
unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral
arguments on 27 November 2007. Thus, in the Resolution of 19 February 2008, the Court
ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No.
178628 echoed Sema's contention that the COMELEC acted ultra vires in issuing
Resolution No. 7902 depriving the voters of Cotabato City of a representative in the House
of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC,
through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a
temporary measure pending the enactment by Congress of the appropriate law.

The Issues
The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily
(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative of Shariff

Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays, is
constitutional; and
(2) if in the affirmative, whether a province created by the ARMM Regional
Assembly under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to
one representative in the House of Representatives without need of a national law creating a
legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No.
7902 is valid for maintaining the status quo in the first legislative district of Maguindanao
(as Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao
with Cotabato City]), despite the creation of the Province of Shariff Kabunsuan out of such
district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is
unconstitutional insofar as it grants to the ARMM Regional Assembly the power to create
provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void;
and (3) COMELEC Resolution No. 7902 is valid.

On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of
Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by any
[21]
tribunal, board, or officer exercising judicial or quasi-judicial functions.
On the other
hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer, or
[22]
person to perform an act which the law specifically enjoins as a duty.
True, the
COMELEC did not issue Resolution No. 7902 in the exercise of its judicial or quasi-judicial
[23]
functions.
Nor is there a law which specifically enjoins the COMELEC to exclude from
canvassing the votes cast in Cotabato City for representative of Shariff Kabunsuan Province
with Cotabato City. These, however, do not justify the outright dismissal of the petition in
G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and
we have long recognized this writ as proper for testing the constitutionality of election laws,
[24]
rules, and regulations.

Respondent Dilangalens Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalens proclamation as winner in
the 14 May 2007 elections for representative of Shariff Kabunsuan Province with Cotabato
City mooted this petition. This case does not concern respondent Dilangalens election.
Rather, it involves an inquiry into the validity of COMELEC Resolution No. 7902, as well
as the constitutionality of MMA Act 201 and Section 19, Article VI of RA 9054.
Admittedly, the outcome of this petition, one way or another, determines whether the votes
cast in Cotabato City for representative of the district of Shariff Kabunsuan Province with

Cotabato City will be included in the canvassing of ballots. However, this incidental
consequence is no reason for us not to proceed with the resolution of the novel issues raised
here. The Courts ruling in these petitions affects not only the recently concluded elections
but also all the other succeeding elections for the office in question, as well as the power of
the ARMM Regional Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the
Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may be created, divided, merged,
abolished or its boundary substantially altered except in accordance with the criteria
established in the local government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.

Thus, the creation of any of the four local government units province, city, municipality or
barangay must comply with three conditions. First, the creation of a local government unit
must follow the criteria fixed in the Local Government Code. Second, such creation must
not conflict with any provision of the Constitution. Third, there must be a plebiscite in the
political units affected.
There is neither an express prohibition nor an express grant of authority in the Constitution
for Congress to delegate to regional or local legislative bodies the power to create local
government units. However, under its plenary legislative powers, Congress can delegate to
local legislative bodies the power to create local government units, subject to reasonable
standards and provided no conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and municipal councils, the power to

[25]
create barangays within their jurisdiction,
subject to compliance with the criteria
established in the Local Government Code, and the plebiscite requirement in Section 10,
Article X of the Constitution. However, under the Local Government Code, only x x x an
[26]

Act of Congress can create provinces, cities or municipalities.

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional
Assembly the power to create provinces, cities, municipalities and barangays within the
ARMM. Congress made the delegation under its plenary legislative powers because the
power to create local government units is not one of the express legislative powers granted
[27]
by the Constitution to regional legislative bodies.
In the present case, the question arises
whether the delegation to the ARMM Regional Assembly of the power to create provinces,
cities, municipalities and barangays conflicts with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional
legislative bodies of the power to create municipalities and barangays, provided Section 10,
Article X of the Constitution is followed. However, the creation of provinces and cities is
another matter. Section 5 (3), Article VI of the Constitution provides, Each city with a
population of at least two hundred fifty thousand, or each province, shall have at least one
representative in the House of Representatives. Similarly, Section 3 of the Ordinance
appended to the Constitution provides, Any province that may hereafter be created, or any
city whose population may hereafter increase to more than two hundred fifty thousand shall
be entitled in the immediately following election to at least one Member x x x.

Clearly, a province cannot be created without a legislative district because it will

violate Section 5 (3), Article VI of the Constitution as well as Section 3 of the Ordinance
appended to the Constitution. For the same reason, a city with a population of 250,000 or
more cannot also be created without a legislative district. Thus, the power to create a
province, or a city with a population of 250,000 or more, requires also the power to create a
legislative district. Even the creation of a city with a population of less than 250,000
involves the power to create a legislative district because once the citys population reaches
250,000, the city automatically becomes entitled to one representative under Section 5 (3),

Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution.
Thus, the power to create a province or city inherently involves the power to create a
legislative district.
For Congress to delegate validly the power to create a province or city, it must also
validly delegate at the same time the power to create a legislative district. The threshold
issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to
create legislative districts for the House of Representatives? The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress
[28]
Under the present Constitution, as well as in past
Constitutions, the power to
increase the allowable membership in the House of Representatives, and to reapportion
legislative districts, is vested exclusively in Congress. Section 5, Article VI of the
Constitution provides:
SECTION 5. (1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila area
in accordance with the number of their respective inhabitants, and on the basis of a uniform
and progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.
xxxx

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make

a reapportionment of legislative districts based on the standards provided in this section.

(Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase,
through a law, the allowable membership in the House of Representatives. Section 5 (4)
empowers Congress to reapportion legislative districts. The power to reapportion legislative
districts necessarily includes the power to create legislative districts out of existing ones.
Congress exercises these powers through a law that Congress itself enacts, and not through
a law that regional or local legislative bodies enact. The allowable membership of the House
of Representatives can be increased, and new legislative districts of Congress can be
[29]
created, only through a national law passed by Congress. In Montejo v. COMELEC,
we
held that the power of redistricting x x x is traditionally regarded as part of the power (of
Congress) to make laws, and thus is vested exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion

legislative districts is logical. Congress is a national legislature and any increase in its
allowable membership or in its incumbent membership through the creation of legislative
districts must be embodied in a national law. Only Congress can enact such a law. It would
be anomalous for regional or local legislative bodies to create or reapportion legislative
districts for a national legislature like Congress. An inferior legislative body, created by a
superior legislative body, cannot change the membership of the superior legislative body.

The creation of the ARMM, and the grant of legislative powers to its Regional
Assembly under its organic act, did not divest Congress of its exclusive authority to create
legislative districts. This is clear from the Constitution and the ARMM Organic Act, as
amended. Thus, Section 20, Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this

Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region.

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions,

expressly or impliedly, to create or reapportion legislative districts for Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic
Act, provides, The Regional Assembly may exercise legislative power x x x except on
the following matters: x x x (k) National elections. x x x. Since the ARMM Regional
Assembly has no legislative power to enact laws relating to national elections, it cannot
create a legislative district whose representative is elected in national elections. Whenever
Congress enacts a law creating a legislative district, the first representative is always elected
[30]
in the next national elections from the effectivity of the law.
Indeed, the office of a legislative district representative to Congress is a national
office, and its occupant, a Member of the House of Representatives, is a national official.
[31]
It would be incongruous for a regional legislative body like the ARMM Regional
Assembly to create a national office when its legislative powers extend only to its regional
territory. The office of a district representative is maintained by national funds and the
salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on
the legislative powers of every local or regional legislative body that it can only create local
or regional offices, respectively, and it can never create a national office.
To allow the ARMM Regional Assembly to create a national office is to allow its

legislative powers to operate outside the ARMMs territorial jurisdiction. This violates
Section 20, Article X of the Constitution which expressly limits the coverage of the
Regional Assemblys legislative powers [w]ithin its territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the
exclusive nature of Congress power to create or reapportion legislative districts by
abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act
201 provides that:

Except as may be provided by national law, the existing legislative district, which

includes Cotabato City as a part thereof, shall remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district because the
Constitution mandates that each province shall have at least one representative. Thus, the
creation of the Province of Shariff Kabunsuan without a legislative district is
unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the
Constitution, which provides:

Each legislative district shall comprise, as far as practicable, contiguous, compact, and

adjacent territory. Each city with a population of at least two hundred fifty thousand, or

each province, shall have at least one representative. (Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may

hereafter increase to more than two hundred fifty thousand shall be entitled in the

immediately following election to at least one Member or such number of Members as it

may be entitled to on the basis of the number of its inhabitants and according to the

standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The

number of Members apportioned to the province out of which such new province was created

or where the city, whose population has so increased, is geographically located shall be

correspondingly adjusted by the Commission on Elections but such adjustment shall not be
made within one hundred and twenty days before the election. (Emphasis supplied)

serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29
October 2006, is automatically entitled to one member in the House of Representatives in
the 14 May 2007 elections. As further support for her stance, petitioner invokes the
statement in Felwa that when a province is created by statute, the corresponding
representative district comes into existence neither by authority of that statute which cannot
provide otherwise nor by apportionment, but by operation of the Constitution, without a
reapportionment.
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695),
creating the provinces of Benguet, Mountain Province, Ifugao, and Kalinga-Apayao and
providing for congressional representation in the old and new provinces, was
unconstitutional for creati[ng] congressional districts without the apportionment provided in
the Constitution. The Court answered in the negative, thus:
The Constitution ordains:
The House of Representatives shall be composed of not more than one hundred
and twenty Members who shall be apportioned among the several provinces as
nearly as may be according to the number of their respective inhabitants, but
each province shall have at least one Member. The Congress shall by law make
an apportionment within three years after the return of every enumeration, and
not otherwise. Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law
for the National Assembly, who shall be elected by the qualified electors from
the present Assembly districts. Each representative district shall comprise as far
as practicable, contiguous and compact territory.
Pursuant to this Section, a representative district may come into existence: (a) indirectly,
through the creation of a province for each province shall have at least one member in
the House of Representatives; or (b) by direct creation of several representative districts
within a province. The requirements concerning the apportionment of representative districts
and the territory thereof refer only to the second method of creation of representative districts,
and do not apply to those incidental to the creation of provinces, under the first method. This is
deducible, not only from the general tenor of the provision above quoted, but, also, from the
fact that the apportionment therein alluded to refers to that which is made by an Act of
Congress. Indeed, when a province is created by statute, the corresponding representative

district, comes into existence neither by authority of that statute which cannot provide
otherwise nor by apportionment, but by operation of the Constitution, without a
reapportionment.
There is no constitutional limitation as to the time when, territory of, or other conditions under

which a province may be created, except, perhaps, if the consequence thereof were to exceed

the maximum of 120 representative districts prescribed in the Constitution, which is not the

effect of the legislation under consideration. As a matter of fact, provinces have been created

[32]

(Emphasis supplied)

or subdivided into other provinces, with the consequent creation of additional representative

districts, without complying with the aforementioned requirements.

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created
legislative districts indirectly through a special law enacted by Congress creating a
province and (2) the creation of the legislative districts will not result in breaching the
maximum number of legislative districts provided under the 1935 Constitution. Felwa does
not apply to the present case because in Felwa the new provinces were created by a
national law enacted by Congress itself. Here, the new province was created merely by a
regional law enacted by the ARMM Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not
emanate alone from Congress power to reapportion legislative districts, but also from
Congress power to create provinces which cannot be created without a legislative district.
Thus, when a province is created, a legislative district is created by operation of the
Constitution because the Constitution provides that each province shall have at least
one representative in the House of Representatives. This does not detract from the
constitutional principle that the power to create legislative districts belongs exclusively to
Congress. It merely prevents any other legislative body, except Congress, from creating
provinces because for a legislative body to create a province such legislative body must
have the power to create legislative districts. In short, only an act of Congress can trigger
the creation of a legislative district by operation of the Constitution. Thus, only Congress
has the power to create, or trigger the creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to

Shariff Kabunsuan upon its creation, this will leave Cotabato City as the lone component of
the first legislative district of Maguindanao. However, Cotabato City cannot constitute a
legislative district by itself because as of the census taken in 2000, it had a population of
only 163,849. To constitute Cotabato City alone as the surviving first legislative district of
Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that
[E]ach city with a population of at least two hundred fifty thousand x x x, shall have at least
one representative.
Second. Semas theory also undermines the composition and independence of the
[33]
House of Representatives. Under Section 19,
Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities within the ARMM with or without
regard to the criteria fixed in Section 461 of RA 7160, namely: minimum annual income of
P20,000,000, and minimum contiguous territory of 2,000 square kilometers or minimum
[34]
The following scenarios thus become distinct possibilities:
population of 250,000.

(1) An inferior legislative body like the ARMM Regional Assembly can
create 100 or more provinces and thus increase the membership of a superior
legislative body, the House of Representatives, beyond the maximum limit of
250 fixed in the Constitution (unless a national law provides otherwise);
(2) The proportional representation in the House of Representatives
based on one representative for at least every 250,000 residents will be negated
because the ARMM Regional Assembly need not comply with the requirement
in Section 461(a)(ii) of RA 7160 that every province created must have a
population of at least 250,000; and
(3) Representatives from the ARMM provinces can become the majority
in the House of Representatives through the ARMM Regional Assemblys
continuous creation of provinces or cities within the ARMM.

The following exchange during the oral arguments of the petition in G.R. No. 177597
highlights the absurdity of Semas position that the ARMM Regional Assembly can create
provinces:

So, you mean to say [a] Local Government can create legislative district[s] and pack

Justice Carpio:
Congress with their own representatives [?]

be done, under your theory[?]

Representatives without Congress agreeing to it, is that what you are saying? That can

x and, therefore, they can have thirty-five (35) new representatives in the House of

So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x

[35]
Atty. Vistan II:
Yes, Your Honor, because the Constitution allows that.
Justice Carpio:

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

what you are saying?

will each have one representative x x x to Congress without any national law, is that

there may be x x x [only] one hundred thousand (100,000) [population], x x x, and they

Under your theory, the ARMM legislature can create thirty-five (35) new provinces,

Justice Carpio:

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we are saying.

that is legally possible, correct?

(1000) representatives to the House of Representatives without a national law[,]

So, they can also create one thousand (1000) new provinces, sen[d] one thousand

xxxx
Justice Carpio:

Atty. Vistan II:

Yes, Your Honor.

[36]
(Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X
[37]
on regional autonomy,
nor Congress in enacting RA 9054, envisioned or intended these
disastrous consequences that certainly would wreck the tri-branch system of government
under our Constitution. Clearly, the power to create or reapportion legislative districts
cannot be delegated by Congress but must be exercised by Congress itself. Even the ARMM
Regional Assembly recognizes this.
The Constitution empowered Congress to create or reapportion legislative districts, not the
regional assemblies. Section 3 of the Ordinance to the Constitution which states, [A]ny
province that may hereafter be created x x x shall be entitled in the immediately following
election to at least one Member, refers to a province created by Congress itself through a
national law. The reason is that the creation of a province increases the actual membership
of the House of Representatives, an increase that only Congress can decide. Incidentally, in
[38]
the present 14th Congress, there are 219
district representatives out of the maximum 250
seats in the House of Representatives. Since party-list members shall constitute 20 percent
of total membership of the House, there should at least be 50 party-list seats available in
every election in case 50 party-list candidates are proclaimed winners. This leaves only 200
seats for district representatives, much less than the 219 incumbent district representatives.
Thus, there is a need now for Congress to increase by law the allowable membership of the
House, even before Congress can create new provinces.
It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution.
Section 20, Article X of the Constitution expressly provides that the legislative powers of
regional assemblies are limited [w]ithin its territorial jurisdiction and subject to the
provisions of the Constitution and national laws, x x x. The Preamble of the ARMM
Organic Act (RA 9054) itself states that the ARMM Government is established within the
framework of the Constitution. This follows Section 15, Article X of the Constitution which

mandates that the ARMM shall be created x x x within the framework of this
Constitution and the national sovereignty as well as territorial integrity of the
Republic of the Philippines.

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

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the
ARMM Regional Assembly the power to create provinces and cities, is void for being
contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well
as Section 3 of the Ordinance appended to the Constitution. Only Congress can create
provinces and cities because the creation of provinces and cities necessarily includes the
creation of legislative districts, a power only Congress can exercise under Section 5, Article
VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. The
ARMM Regional Assembly cannot create a province without a legislative district because
the Constitution mandates that every province shall have a legislative district. Moreover, the
ARMM Regional Assembly cannot enact a law creating a national office like the office of a
district representative of Congress because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as provided in Section 20, Article X
of the Constitution. Thus, we rule that MMA Act 201, enacted by the ARMM Regional
Assembly and creating the Province of Shariff Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the

geographic and legislative district of the First District of Maguindanao with Cotabato City,
is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the

Constitution, as well as Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054
UNCONSTITUTIONAL insofar as it grants to the Regional Assembly of the Autonomous
Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare
VOID Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of
the House of Representatives.

CONSUELO YNARES-SANTIAGO
Associate Justice

REYNATO S. PUNO
Chief Justice

Associate Justice

ANTONIO T. CARPIO

SO ORDERED.

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

RENATO C. CORONA
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

DANTE O. TINGA
Associate Justice

RUBEN T. REYES
Associate Justice

ARTURO D. BRION

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 166715

August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S.

ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN
R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic
Act (RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and
BOC officials and employees to exceed their revenue targets by providing a system of rewards and
sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue
Performance Evaluation Board (Board).3 It covers all officials and employees of the BIR and the BOC
with at least six months of service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for
the year, as determined by the Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance
(DOF) or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM)
or his/her Undersecretary, the Director General of the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their
Deputy Commissioners, two representatives from the rank-and-file employees and a representative
from the officials nominated by their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3) terminate personnel in accordance
with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform
other functions, including the issuance of rules and regulations and (6) submit an annual report to
Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,8 to be approved by a Joint
Congressional Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA
9335, a tax reform legislation. They contend that, by establishing a system of rewards and incentives,
the law "transform[s] the officials and employees of the BIR and the BOC into mercenaries and
bounty hunters" as they will do their best only in consideration of such rewards. Thus, the system of
rewards and incentives invites corruption and undermines the constitutionally mandated duty of these
officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials
and employees of the BIR and the BOC violates the constitutional guarantee of equal protection.
There is no valid basis for classification or distinction as to why such a system should not apply to
officials and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335
provides that BIR and BOC officials may be dismissed from the service if their revenue collections fall
short of the target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved.
Instead, the fixing of revenue targets has been delegated to the President without sufficient
standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in
order to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it
violates the doctrine of separation of powers. While the legislative function is deemed accomplished
and completed upon the enactment and approval of the law, the creation of the congressional
oversight committee permits legislative participation in the implementation and enforcement of the
law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for
being premature as there is no actual case or controversy yet. Petitioners have not asserted any right
or claim that will necessitate the exercise of this Courts jurisdiction. Nevertheless, respondents
acknowledge that public policy requires the resolution of the constitutional issues involved in this
case. They assert that the allegation that the reward system will breed mercenaries is mere
speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective
of RA 9335, the law validly classifies the BIR and the BOC because the functions they perform are
distinct from those of the other government agencies and instrumentalities. Moreover, the law
provides a sufficient standard that will guide the executive in the implementation of its provisions.
Lastly, the creation of the congressional oversight committee under the law enhances, rather than
violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check
to any over-accumulation of power on the part of the executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that
petitioners have failed to overcome the presumption of constitutionality in favor of RA 9335, except as
shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question
must be ripe for adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the individual challenging it.11
Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the outcome of
the case or an injury to himself that can be redressed by a favorable decision of the Court.12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by
the mere enactment of the law even without any further overt act,13 petitioners fail either to assert any
specific and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They
are unable to show a personal stake in the outcome of this case or an injury to themselves. On this
account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 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.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for
the benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and
employees have the duty to be responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis
thereof and reinforces it by providing a system of rewards and sanctions for the purpose of
encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and
optimize their revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned
by mere conjecture or denied in advance (as petitioners would have the Court do) specially in this
case where it is an underlying principle to advance a declared public policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees
into "bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a doubtful and
equivocal one.16 To invalidate RA 9335 based on petitioners baseless supposition is an affront to the
wisdom not only of the legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary
and exceptional performance. A system of incentives for exceeding the set expectations of a public
office is not anathema to the concept of public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public service of deserving government
personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of
the customs as well as other parties an amount not exceeding one-half of the net proceeds of
forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S.
Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and
industry in detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue
targets. In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it
will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular
performance of official duties. One of these precautionary measures is embodied in Section 8 of the
law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials,
examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any loss or injury suffered by
any business establishment or taxpayer as a result of such violation, negligence, abuse,
malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and
among persons similarly situated; it is equality among equals, not similarity of treatment of persons
who are classified based on substantial differences in relation to the object to be accomplished.19
When things or persons are different in fact or circumstance, they may be treated in law differently. In
Victoriano v. Elizalde Rope Workers Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. Neither is it necessary that the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a
reasonable foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed
public policy is the optimization of the revenue-generation capability and collection of the BIR and the
BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR
and the BOC, the incentives and/or sanctions provided in the law should logically pertain to the said
agencies. Moreover, the law concerns only the BIR and the BOC because they have the common
distinct primary function of generating revenues for the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal Revenue,
who shall be appointed by the President upon the recommendation of the Secretary [of the
DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and
duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx

xxx

xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject
to the management and control of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of
entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx

xxx

xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function
of being the instrumentalities through which the State exercises one of its great inherent functions
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of
the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335
fully satisfy the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2)
the sufficient standard test. A law is complete when it sets forth therein the policy to be executed,
carried out or implemented by the delegate.26 It lays down a sufficient standard when it provides
adequate guidelines or limitations in the law to map out the boundaries of the delegates authority and
prevent the delegation from running riot.27 To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy and identify the conditions under which it is to be
implemented.28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets
and the implementing agencies in carrying out the provisions of the law. Section 2 spells out the
policy of the law:
SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through the creation of a Rewards
and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for
the purpose of encouraging their officials and employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the
President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred
to as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Percent (%) of the Excess Collection
Excess
the
Revenue to Accrue to the Fund
Targets
30% or below
15%
More than 30%
15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year
when the revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection districts in the case of the
BOC.
xxx

xxx

xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the
BIR and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted
by the President to Congress.30 Thus, the determination of revenue targets does not rest solely on

the President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least
7.5% may be removed from the service:
SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following
powers and functions:
xxx

xxx

xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis
for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities or
force majeure or economic causes as may be determined by the Board, termination shall
be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately executory: Provided, further, That the
application of the criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and
Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx

xxx

xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and
the BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from
the service for causes other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the
revenue collection falls short of the target by at least 7.5%) with due consideration of all relevant
factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in
the performance of official duties, a ground for disciplinary action under civil service laws.32 The
action for removal is also subject to civil service laws, rules and regulations and compliance with
substantive and procedural due process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice
and equity," "public convenience and welfare" and "simplicity, economy and welfare."33 In this case,
the declared policy of optimization of the revenue-generation capability and collection of the BIR and
the BOC is infused with public interest.
Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from the Senate shall be appointed
by the Senate President, with at least two senators representing the minority. The Members
from the House of Representatives shall be appointed by the Speaker with at least two
members representing the minority. After the Oversight Committee will have approved the
implementing rules and regulations (IRR) it shall thereafter become functus officio and therefore
cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving
the implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and
CSC. On May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased
to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and
enforcing the law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other
similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with program objectives, (b) to determine
whether agencies are properly administered, (c) to eliminate executive waste and
dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess
executive conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and
integral to the checks and balances inherent in a democratic system of government. x x x x x x x
xx
Over the years, Congress has invoked its oversight power with increased frequency to check
the perceived "exponential accumulation of power" by the executive branch. By the beginning of
the 20th century, Congress has delegated an enormous amount of legislative authority to the
executive branch and the administrative agencies. Congress, thus, uses its oversight power to
make sure that the administrative agencies perform their functions within the authority
delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of legislative scrutiny, Congress
may request information and report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the agency involved.

xxx

xxx

xxx

b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that
are readily available, congressional investigation involves a more intense digging of facts.
The power of Congress to conduct investigation is recognized by the 1987 Constitution
under section 21, Article VI, xxx
xxx
xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a continuing and informed awareness on the
part of a congressional committee regarding executive operations in a given administrative
area. While both congressional scrutiny and investigation involve inquiry into past executive
branch actions in order to influence future executive branch performance, congressional
supervision allows Congress to scrutinize the exercise of delegated law-making authority, and
permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically
utilizes veto provisions when granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions require the President or an
agency to present the proposed regulations to Congress, which retains a "right" to approve or
disapprove any regulation before it takes effect. Such legislative veto provisions usually provide
that a proposed regulation will become a law after the expiration of a certain period of time, only
if Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently,
the statute provides that a proposed regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power
between the legislative and the executive branches of government as it offers lawmakers a way
to delegate vast power to the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to pass new legislation or to
repeal existing law. They contend that this arrangement promotes democratic accountability as
it provides legislative check on the activities of unelected administrative agencies. One
proponent thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims. Consequently,
absent safeguards, in many instances the reverse of our constitutional scheme could be
effected: Congress proposes, the Executive disposes. One safeguard, of course, is the
legislative power to enact new legislation or to change existing law. But without some
means of overseeing post enactment activities of the executive branch, Congress would
be unable to determine whether its policies have been implemented in accordance with
legislative intent and thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the
executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the Presidents veto
authority and intrusion into the powers vested in the executive or judicial branches of

government. Proponents counter that legislative veto enhances separation of powers as it

prevents the executive branch and independent agencies from accumulating too much power.
They submit that reporting requirements and congressional committee investigations allow
Congress to scrutinize only the exercise of delegated law-making authority. They do not allow
Congress to review executive proposals before they take effect and they do not afford the
opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative
veto permits Congress to participate prospectively in the approval or disapproval of "subordinate
law" or those enacted by the executive branch pursuant to a delegation of authority by
Congress. They further argue that legislative veto "is a necessary response by Congress to the
accretion of policy control by forces outside its chambers." In an era of delegated authority, they
point out that legislative veto "is the most efficient means Congress has yet devised to retain
control over the evolution and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to remain in
the United States. The immigration judge reopened the deportation proceedings to implement
the House order and the alien was ordered deported. The Board of Immigration Appeals
dismissed the aliens appeal, holding that it had no power to declare unconstitutional an act of
Congress. The United States Court of Appeals for Ninth Circuit held that the House was without
constitutional authority to order the aliens deportation and that 244(c)(2) violated the
constitutional doctrine on separation of powers.
On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was essentially
legislative in purpose and effect. As such, it is subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both Houses and presentment to the
President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978
and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto provisions although some of these
provisions required the approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were not even exercised.35
(emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections, the
Court struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a
Joint Congressional Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the IRR promulgated by
the Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact even enhance the separation of powers
as it prevents the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the

Constitution imposes two basic and related constraints on Congress.37 It may not vest itself, any of its
committees or its members with either executive or judicial power.38 And, when it exercises its
legislative power, it must follow the "single, finely wrought and exhaustively considered, procedures"
specified under the Constitution,39 including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present
the proposed implementing rules and regulations of a law to Congress which, by itself or through a
committee formed by it, retains a "right" or "power" to approve or disapprove such regulations before
they take effect. As such, a legislative veto in the form of a congressional oversight committee is in
the form of an inward-turning delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law initially delegated broad
powers.43 It radically changes the design or structure of the Constitutions diagram of power as it
entrusts to Congress a direct role in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad
horizons of its legislative competence.45 It can itself formulate the details or it can assign to the
executive branch the responsibility for making necessary managerial decisions in conformity with
those standards.46 In the latter case, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or
the concerned administrative agency when it formulates rules and regulations implementing the law is
to fill up details (supplementary rule-making) or ascertain facts necessary to bring the law into actual
operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement and interpret the law
which they are entrusted to enforce have the force of law and are entitled to respect.49 Such rules
and regulations partake of the nature of a statute50 and are just as binding as if they have been
written in the statute itself. As such, they have the force and effect of law and enjoy the presumption
of constitutionality and legality until they are set aside with finality in an appropriate case by a
competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon
their legality by subjecting them to its stamp of approval without disturbing the calculated balance of
powers established by the Constitution. In exercising discretion to approve or disapprove the IRR
based on a determination of whether or not they conformed with the provisions of RA 9335, Congress
arrogated judicial power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress
as a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the
rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws)53 is vested in Congress
which consists of two chambers, the Senate and the House of Representatives. A valid exercise of
legislative power requires the act of both chambers. Corrollarily, it can be exercised neither solely by
one of the two chambers nor by a committee of either or both chambers. Thus, assuming the validity
of a legislative veto, both a single-chamber legislative veto and a congressional committee legislative
veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto
it and return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, twothirds of all the Members of such House shall agree to pass the bill, it shall be sent, together
with the objections, to the other House by which it shall likewise be reconsidered, and if
approved by two-thirds of all the Members of that House, it shall become a law. In all such
cases, the votes of each House shall be determined by yeas or nays, and the names of the
members voting for or against shall be entered in its Journal. The President shall communicate
his veto of any bill to the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the
absence of presentment to the President, no bill passed by Congress can become a law. In this
sense, law-making under the Constitution is a joint act of the Legislature and of the Executive.
Assuming that legislative veto is a valid legislative act with the force of law, it cannot take effect
without such presentment even if approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses
of Congress.54 Second, it must be presented to and approved by the President.55 As summarized by
Justice Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the
approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral
by the Senate President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of
the same nature or purpose, they may all be consolidated into one bill under common
authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill
is read in its entirety, scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed by the rules. No further debate
is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the
three readings. If there are differences between the versions approved by the two chambers, a
conference committee58 representing both Houses will draft a compromise measure that if
ratified by the Senate and the House of Representatives will then be submitted to the President
for his consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated
with the signatures of the Senate President, the Speaker, and the Secretaries of their respective
chambers59
The Presidents role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law
after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of
the legislature when it becomes effective because it is only upon effectivity of the statute that legal
rights and obligations become available to those entitled by the language of the statute. Subject to the
indispensable requisite of publication under the due process clause,61 the determination as to when a
law takes effect is wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a
law may be executed and the executive branch acquires the duties and powers to execute the said
law. Before that point, the role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that empowers Congress or any of
its members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that requires
Congress or its members to approve the implementing rules of a law after it has already taken effect
shall be unconstitutional, as is a provision that allows Congress or its members to overturn any
directive or ruling made by the members of the executive branch charged with the implementation of
the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While
there may be similar provisions of other laws that may be invalidated for failure to pass this standard,
the Court refrains from invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA
9335 on the other provisions of the law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity
shall remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be enforced.
The presence of a separability clause in a statute creates the presumption that the legislature
intended separability, rather than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it could not constitutionally

enact the other. Enough must remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent
and connected, as conditions, considerations, inducements, or compensations for each other,
as to warrant a belief that the legislature intended them as a whole, the nullity of one part will
vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one
another, the legislature intended the statute to be carried out as a whole and would not have
enacted it if one part is void, in which case if some parts are unconstitutional, all the other
provisions thus dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any
invalid provision from the other provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without Section 12, the remaining provisions
still constitute a complete, intelligible and valid law which carries out the legislative intent to optimize
the revenue-generation capability and collection of the BIR and the BOC by providing for a system of
rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to
enforce or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published
on May 30, 2006 in two newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed valid and effective even
without the approval of the Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint
Congressional Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the
remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the
provisions remain in force and effect.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Azcuna, Tinga, Chico-Nazario, Velasco, Jr., Nachura, Reyes, Leonardo-de-Castro, Brion, JJ., concur.

Footnotes
*

Advocates and Adherents of Social Justice for School Teachers and Allied Workers.

Under Rule 65 of the Rules of Court.

An Act to Improve Revenue Collection Performance of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC) Through the Creation of a Rewards and Incentives Fund and
of a Revenue Performance Evaluation Board and for Other Purposes.
3

Section 2, RA 9335.

Section 3, id.

Section 4, id.

Section 6, id.

Today is Thursday, June 04, 2015

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 161414

January 17, 2005

SULTAN OSOP B. CAMID, petitioner,

vs.
THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT of FINANCE, DEPARTMENT of BUDGET
AND MANAGEMENT, COMMISSION ON AUDIT, and the CONGRESS OF THE PHILIPPINES (HOUSE of
REPRESENTATIVES AND SENATE), respondents.
DECISION
TINGA, J.:
This Petition for Certiorari presents this Court with the prospect of our own Brigadoon1 the municipality of Andong,
Lanao del Surwhich like its counterpart in filmdom, is a town that is not supposed to exist yet is anyway insisted by some as
actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely charming
about the purported existence of Andong. The creation of the putative municipality was declared void ab initio by this Court
four decades ago, but the present petition insists that in spite of this insurmountable obstacle Andong thrives on, and hence, its
legal personality should be given judicial affirmation. We disagree.
The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor General2 in 1965. As
discussed therein, then President Diosdado Macapagal issued several Executive Orders3 creating thirty-three (33)
municipalities in Mindanao. Among them was Andong in Lanao del Sur which was created by virtue of Executive
Order No. 107.4
These executive orders were issued after legislative bills for the creation of municipalities involved in that case had
failed to pass Congress.5 President Diosdado Macapagal justified the creation of these municipalities citing his
powers under Section 68 of the Revised Administrative Code. Then Vice-President Emmanuel Pelaez filed a special
civil action for a writ of prohibition, alleging in main that the Executive Orders were null and void, Section 68 having
been repealed by Republic Act No. 2370,6 and said orders constituting an undue delegation of legislative power.7
After due deliberation, the Court unanimously held that the challenged Executive Orders were null and void. A
majority of five justices, led by the ponente, Justice (later Chief Justice) Roberto Concepcion, ruled that Section 68
of the Revised Administrative Code did not meet the well-settled requirements for a valid delegation of legislative
power to the executive branch,8 while three justices opined that the nullity of the issuances was the consequence of
the enactment of the 1935 Constitution, which reduced the power of the Chief Executive over local governments.9
Pelaez was disposed in this wise:
WHEREFORE, the Executive Orders in question are declared null and void ab initio and the respondent
permanently restrained from passing in audit any expenditure of public funds in implementation of said Executive
Orders or any disbursement by the municipalities above referred to. It is so ordered.10
Among the Executive Orders annulled was Executive Order No. 107 which created the Municipality of Andong.
Nevertheless, the core issue presented in the present petition is the continued efficacy of the judicial annulment of
the Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of Andong,11 suing as a private
citizen and taxpayer whose locus standi "is of public and paramount interest especially to the people of the
Municipality of Andong, Province of Lanao del Sur."12 He alleges that Andong "has metamorphosed into a full-blown

municipality with a complete set of officials appointed to handle essential services for the municipality and its
constituents,"13 even though he concedes that since 1968, no person has been appointed, elected or qualified to
serve any of the elective local government positions of Andong.14 Nonetheless, the municipality of Andong has its
own high school, Bureau of Posts, a Department of Education, Culture and Sports office, and at least seventeen
(17) "barangay units" with their own respective chairmen.15 From 1964 until 1972, according to Camid, the public
officials of Andong "have been serving their constituents through the minimal means and resources with least (sic)
honorarium and recognition from the Office of the then former President Diosdado Macapagal." Since the time of
Martial Law in 1972, Andong has allegedly been getting by despite the absence of public funds, with the "Interim
Officials" serving their constituents "in their own little ways and means."16
In support of his claim that Andong remains in existence, Camid presents to this Court a Certification issued by the
Office of the Community Environment and Natural Resources (CENRO) of the Department of Environment and
Natural Resources (DENR) certifying the total land area of the Municipality of Andong, "created under Executive
Order No. 107 issued [last] October 1, 1964."17 He also submits a Certification issued by the Provincial Statistics
Office of Marawi City concerning the population of Andong, which is pegged at fourteen thousand fifty nine (14,059)
strong. Camid also enumerates a list of governmental agencies and private groups that allegedly recognize Andong,
and notes that other municipalities have recommended to the Speaker of the Regional Legislative Assembly for the
immediate implementation of the revival or re-establishment of Andong.18
The petition assails a Certification dated 21 November 2003, issued by the Bureau of Local Government
Supervision of the Department of Interior and Local Government (DILG).19 The Certification enumerates eighteen
(18) municipalities certified as "existing," per DILG records. Notably, these eighteen (18) municipalities are among
the thirty-three (33), along with Andong, whose creations were voided by this Court in Pelaez. These municipalities
are Midaslip, Pitogo, Naga, and Bayog in Zamboanga del Sur; Siayan and Pres. Manuel A. Roxas in Zamboanga
del Norte; Magsaysay, Sta. Maria and New Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del
Sur; Gloria in Oriental Mindoro; Maasim in Sarangani; Kalilangan and Lantapan in Bukidnon; and Maco in
Compostela Valley.20
Camid imputes grave abuse of discretion on the part of the DILG "in not classifying [Andong] as a regular existing
municipality and in not including said municipality in its records and official database as [an] existing regular
municipality."21 He characterizes such non-classification as unequal treatment to the detriment of Andong,
especially in light of the current recognition given to the eighteen (18) municipalities similarly annulled by reason of
Pelaez. As appropriate relief, Camid prays that the Court annul the DILG Certification dated 21 November 2003;
direct the DILG to classify Andong as a "regular existing municipality;" all public respondents, to extend full
recognition and support to Andong; the Department of Finance and the Department of Budget and Management, to
immediately release the internal revenue allotments of Andong; and the public respondents, particularly the DILG, to
recognize the "Interim Local Officials" of Andong.22
Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues that Pelaez has already
been modified by supervening events consisting of subsequent laws and jurisprudence. Particularly cited is our
Decision in Municipality of San Narciso v. Hon. Mendez,23 wherein the Court affirmed the unique status of the
municipality of San Andres in Quezon as a "de facto municipal corporation."24 Similar to Andong, the municipality of
San Andres was created by way of executive order, precisely the manner which the Court in Pelaez had declared as
unconstitutional. Moreover, San Narciso cited, as Camid does, Section 442(d) of the Local Government Code of
1991 as basis for the current recognition of the impugned municipality. The provision reads:
Section 442. Requisites for Creation. - xxx
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such.
Existing municipal districts organized pursuant to presidential issuances or executive orders and which have their
respective sets of elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth
be considered as regular municipalities.25
There are several reasons why the petition must be dismissed. These can be better discerned upon examination of
the proper scope and application of Section 442(d), which does not sanction the recognition of just any municipality.
This point shall be further explained further on.
Notably, as pointed out by the public respondents, through the Office of the Solicitor General (OSG), the case is not
a fit subject for the special civil actions of certiorari and mandamus, as it pertains to the de novo appreciation of
factual questions. There is indeed no way to confirm several of Camids astonishing factual allegations pertaining to
the purported continuing operation of Andong in the decades since it was annulled by this Court. No trial court has
had the opportunity to ascertain the validity of these factual claims, the appreciation of which is beyond the function

of this Court since it is not a trier of facts.

The importance of proper factual ascertainment cannot be gainsaid, especially in light of the legal principles
governing the recognition of de facto municipal corporations. It has been opined that municipal corporations may
exist by prescription where it is shown that the community has claimed and exercised corporate functions, with the
knowledge and acquiescence of the legislature, and without interruption or objection for period long enough to afford
title by prescription.26 These municipal corporations have exercised their powers for a long period without objection
on the part of the government that although no charter is in existence, it is presumed that they were duly
incorporated in the first place and that their charters had been lost.27 They are especially common in England,
which, as well-worth noting, has existed as a state for over a thousand years. The reason for the development of
that rule in England is understandable, since that country was settled long before the Roman conquest by nomadic
Celtic tribes, which could have hardly been expected to obtain a municipal charter in the absence of a national legal
authority.
In the United States, municipal corporations by prescription are less common, but it has been held that when no
charter or act of incorporation of a town can be found, it may be shown to have claimed and exercised the powers of
a town with the knowledge and assent of the legislature, and without objection or interruption for so long a period as
to furnish evidence of a prescriptive right.28
What is clearly essential is a factual demonstration of the continuous exercise by the municipal corporation of its
corporate powers, as well as the acquiescence thereto by the other instrumentalities of the state. Camid does not
have the opportunity to make an initial factual demonstration of those circumstances before this Court. Indeed, the
factual deficiencies aside, Camids plaint should have undergone the usual administrative gauntlet and, once that
was done, should have been filed first with the Court of Appeals, which at least would have had the power to make
the necessary factual determinations. Camids seeming ignorance of the principles of exhaustion of administrative
remedies and hierarchy of courts, as well as the concomitant prematurity of the present petition, cannot be
countenanced.
It is also difficult to capture the sense and viability of Camids present action. The assailed issuance is the
Certification issued by the DILG. But such Certification does not pretend to bear the authority to create or revalidate
a municipality. Certainly, the annulment of the Certification will really do nothing to serve Camids ultimate cause- the
recognition of Andong. Neither does the Certification even expressly refute the claim that Andong still exists, as
there is nothing in the document that comments on the present status of Andong. Perhaps the Certification is
assailed before this Court if only to present an actual issuance, rather than a long-standing habit or pattern of action
that can be annulled through the special civil action of certiorari. Still, the relation of the Certification to Camids
central argument is forlornly strained.
These disquisitions aside, the central issue remains whether a municipality whose creation by executive fiat was
previously voided by this Court may attain recognition in the absence of any curative or reimplementing statute.
Apparently, the question has never been decided before, San Narciso and its kindred cases pertaining as they did to
municipalities whose bases of creation were dubious yet were never judicially nullified. The effect of Section 442(d)
of the Local Government Code on municipalities such as Andong warrants explanation. Besides, the residents of
Andong who belabor under the impression that their town still exists, much less those who may comport themselves
as the municipalitys "Interim Government," would be well served by a rude awakening.
The Court can employ a simplistic approach in resolving the substantive aspect of the petition, merely by pointing
out that the Municipality of Andong never existed.29 Executive Order No. 107, which established Andong, was
declared "null and void ab initio" in 1965 by this Court in Pelaez, along with thirty-three (33) other executive orders.
The phrase "ab initio" means "from the beginning,"30 "at first,"31 "from the inception."32 Pelaez was never reversed
by this Court but rather it was expressly affirmed in the cases of Municipality of San Joaquin v. Siva,33 Municipality
of Malabang v. Benito,34 and Municipality of Kapalong v. Moya.35 No subsequent ruling by this Court declared
Pelaez as overturned or inoperative. No subsequent legislation has been passed since 1965 creating a Municipality
of Andong. Given these facts, there is hardly any reason to elaborate why Andong does not exist as a duly
constituted municipality.
This ratiocination does not admit to patent legal errors and has the additional virtue of blessed austerity. Still, its
sweeping adoption may not be advisedly appropriate in light of Section 442(d) of the Local Government Code and
our ruling in Municipality of San Narciso, both of which admit to the possibility of de facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section 442(b) of the Local Government Code to
the situation of Andong, it is necessary again to consider the ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then, and still is, not empowered to

create municipalities through executive issuances. The Court therein recognized "that the President has, for many
years, issued executive orders creating municipal corporations, and that the same have been organized and in
actual operation . . . ."36 However, the Court ultimately nullified only those thirty-three (33) municipalities, including
Andong, created during the period from 4 September to 29 October 1964 whose existence petitioner Vice-President
Pelaez had specifically assailed before this Court. No pronouncement was made as to the other municipalities which
had been previously created by the President in the exercise of power the Court deemed unlawful.
Two years after Pelaez was decided, the issue again came to fore in Municipality of San Joaquin v. Siva.37 The
Municipality of Lawigan was created by virtue of Executive Order No. 436 in 1961. Lawigan was not one of the
municipalities ordered annulled in Pelaez. A petition for prohibition was filed contesting the legality of the executive
order, again on the ground that Section 68 of the Revised Administrative Code was unconstitutional. The trial court
dismissed the petition, but the Supreme Court reversed the ruling and entered a new decision declaring Executive
Order No. 436 void ab initio. The Court reasoned without elaboration that the issue had already been squarely taken
up and settled in Pelaez which agreed with the argument posed by the challengers to Lawigans validity.38
In the 1969 case of Municipality of Malabang v. Benito,39 what was challenged is the validity of the constitution of
the Municipality of Balabagan in Lanao del Sur, also created by an executive order,40 and which, similar to Lawigan,
was not one of the municipalities annulled in Pelaez. This time, the officials of Balabagan invoked de facto status as
a municipal corporation in order to dissuade the Court from nullifying action. They alleged that its status as a de
facto corporation cannot be collaterally attacked but should be inquired into directly in an action for quo warranto at
the instance of the State, and not by a private individual as it was in that case. In response, the Court conceded that
an inquiry into the legal existence of a municipality is reserved to the State in a proceeding for quo warranto, but
only if the municipal corporation is a de facto corporation.41
Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even though it had been
organized prior to the Courts decision in Pelaez. The Court declared void the executive order creating Balabagan
and restrained its municipal officials from performing their official duties and functions.42 It cited conflicting American
authorities on whether a de facto corporation can exist where the statute or charter creating it is unconstitutional.43
But the Courts final conclusion was unequivocal that Balabagan was not a de facto corporation.
1awphi1.nt

In the cases where a de facto municipal corporation was recognized as such despite the fact that the statute
creating it was later invalidated, the decisions could fairly be made to rest on the consideration that there was some
other valid law giving corporate vitality to the organization. Hence, in the case at bar, the mere fact that Balabagan
was organized at a time when the statute had not been invalidated cannot conceivably make it a de facto
corporation, as, independently of the Administrative Code provision in question, there is no other valid statute to give
color of authority to its creation.44
The Court did clarify in Malabang that the previous acts done by the municipality in the exercise of its corporate
powers were not necessarily a nullity.45 Camid devotes several pages of his petition in citing this point,46 yet the
relevance of the citation is unclear considering that Camid does not assert the validity of any corporate act of
Andong prior to its judicial dissolution. Notwithstanding, the Court in Malabang retained an emphatic attitude as to
the unconstitutionality of the power of the President to create municipal corporations by way of presidential
promulgations, as authorized under Section 68 of the Revised Administrative Code.
This principle was most recently affirmed in 1988, in Municipality of Kapalong v. Moya.47 The municipality of Santo
Tomas, created by President Carlos P. Garcia, filed a complaint against another municipality, who challenged Santo
Tomass legal personality to institute suit. Again, Santo Tomas had not been expressly nullified by prior judicial
action, yet the Court refused to recognize its legal existence. The blunt but simple ruling: "Now then, as ruled in the
Pelaez case supra, the President has no power to create a municipality. Since [Santo Tomas] has no legal
personality, it can not be a party to any civil action."48
Nevertheless, when the Court decided Municipality of San Narciso49 in 1995, it indicated a shift in the jurisprudential
treatment of municipalities created through presidential issuances. The questioned municipality of San Andres,
Quezon was created on 20 August 1959 by Executive Order No. 353 issued by President Carlos P. Garcia.
Executive Order No. 353 was not one of the thirty-three issuances annulled by Pelaez in 1965. The legal status of
the Municipality of San Andres was first challenged only in 1989, through a petition for quo warranto filed with the
Regional Trial Court of Gumaca, Quezon, which did cite Pelaez as authority.50 The RTC dismissed the petition for
lack of cause of action, and the petitioners therein elevated the matter to this Court.
In dismissing the petition, the Court delved in the merits of the petition, if only to resolve further doubt on the legal
status of San Andres. It noted a circumstance which is not present in the case at barthat San Andres was in
existence for nearly thirty (30) years before its legality was challenged. The Court did not declare the executive

order creating San Andres null and void. Still, acting on the premise that the said executive order was a complete
nullity, the Court noted "peculiar circumstances" that led to the conclusion that San Andres had attained the unique
status of a "de facto municipal corporation."51 It noted that Pelaez limited its nullificatory effect only to those
executive orders specifically challenged therein, despite the fact that the Court then could have very well extended
the decision to invalidate San Andres as well.52 This statement squarely contradicts Camids reading of San Narciso
that the creation of San Andres, just like Andong, had been declared a complete nullity on the same ground of
unconstitutional delegation of legislative power found in Pelaez.53
The Court also considered the applicability of Section 442(d)54 of the Local Government Code of 1991. It clarified
the implication of the provision as follows:
Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized
pursuant to presidential issuances or executive orders and which have their respective sets of elective municipal
officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as regular
municipalities." No pretension of unconstitutionality per se of Section 442(d) of the Local Government Code is
preferred. It is doubtful whether such a pretext, even if made, would succeed. The power to create political
subdivisions is a function of the legislature. Congress did just that when it has incorporated Section 442(d)
in the Code. Curative laws, which in essence are retrospective, and aimed at giving "validity to acts done that would
have been invalid under existing laws, as if existing laws have been complied with," are validly accepted in this
jurisdiction, subject to the usual qualification against impairment of vested rights. (Emphasis supplied)55
The holding in San Narciso was subsequently affirmed in Municipality of Candijay v. Court of Appeals56 and
Municipality of Jimenez v. Baz57 In Candijay, the juridical personality of the Municipality of Alicia, created in a 1949
executive order, was attacked only beginning in 1984. Pelaez was again invoked in support of the challenge, but the
Court refused to invalidate the municipality, citing San Narciso at length. The Court noted that the situation of the
Municipality of Alicia was strikingly similar to that in San Narciso; hence, the town should likewise "benefit from the
effects of Section 442(d) of the Local Government Code, and should [be] considered as a regular, de jure
municipality." 58
The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was among the issues raised in
Jimenez. The Court, through Justice Mendoza, provided an expert summation of the evolution of the rule.
The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in
Pelaez v. Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore
the President was without power to create by executive order the Municipality of Sinacaban. The ruling in this case
has been reiterated in a number of cases later decided. However, we have since held that where a municipality
created as such by executive order is later impliedly recognized and its acts are accorded legal validity, its creation
can no longer be questioned. In Municipality of San Narciso, Quezon v. Mendez, Sr., this Court considered the
following factors as having validated the creation of a municipal corporation, which, like the Municipality of
Sinacaban, was created by executive order of the President before the ruling in Pelaez v. Auditor General: (1) the
fact that for nearly 30 years the validity of the creation of the municipality had never been challenged; (2) the fact
that following the ruling in Pelaez no quo warranto suit was filed to question the validity of the executive order
creating such municipality; and (3) the fact that the municipality was later classified as a fifth class municipality,
organized as part of a municipal circuit court and considered part of a legislative district in the Constitution
apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might be as
to the de jure character of the municipality must be deemed to have been put to rest by the Local Government Code
of 1991 (R. A. No. 7160), 442(d) of which provides that "municipal districts organized pursuant to presidential
issuances or executive orders and which have their respective sets of elective officials holding office at the time of
the effectivity of this Code shall henceforth be considered as regular municipalities."
Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal
corporation in the sense that its legal existence has been recognized and acquiesced publicly and officially.
Sinacaban had been in existence for sixteen years when Pelaez v. Auditor General was decided on December 24,
1965. Yet the validity of E.O. No. 258 creating it had never been questioned. Created in 1949, it was only 40 years
later that its existence was questioned and only because it had laid claim to an area that apparently is desired for its
revenue. This fact must be underscored because under Rule 66, 16 of the Rules of Court, a quo warranto suit
against a corporation for forfeiture of its charter must be commenced within five (5) years from the time the act
complained of was done or committed. On the contrary, the State and even the Municipality of Jimenez itself have
recognized Sinacaban's corporate existence. Under Administrative Order No. 33 dated June 13, 1978 of this Court,
as reiterated by 31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129), Sinacaban is constituted part of a
municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the country. For its part,
Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their common

boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.
Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution,
apportioning legislative districts throughout the country, which considered Sinacaban part of the Second District of
Misamis Occidental. Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of
the Local Government Code of 1991 must be deemed to have cured any defect in the creation of Sinacaban.59
1awphi1.nt

From this survey of relevant jurisprudence, we can gather the applicable rules. Pelaez and its offspring cases ruled
that the President has no power to create municipalities, yet limited its nullificatory effects to the particular
municipalities challenged in actual cases before this Court. However, with the promulgation of the Local Government
Code in 1991, the legal cloud was lifted over the municipalities similarly created by executive order but not judicially
annulled. The de facto status of such municipalities as San Andres, Alicia and Sinacaban was recognized by this
Court, and Section 442(b) of the Local Government Code deemed curative whatever legal defects to title these
municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not. There are eminent
differences between Andong and municipalities such as San Andres, Alicia and Sinacaban. Most prominent is the
fact that the executive order creating Andong was expressly annulled by order of this Court in 1965. If we were to
affirm Andongs de facto status by reason of its alleged continued existence despite its nullification, we would in
effect be condoning defiance of a valid order of this Court. Court decisions cannot obviously lose their efficacy due
to the sheer defiance by the parties aggrieved.
l^vvphi1.net

It bears noting that based on Camids own admissions, Andong does not meet the requisites set forth by Section
442(d) of the Local Government Code. Section 442(d) requires that in order that the municipality created by
executive order may receive recognition, they must "have their respective set of elective municipal officials holding
office at the time of the effectivity of [the Local Government] Code." Camid admits that Andong has never elected its
municipal officers at all.60 This incapacity ties in with the fact that Andong was judicially annulled in 1965. Out of
obeisance to our ruling in Pelaez, the national government ceased to recognize the existence of Andong, depriving it
of its share of the public funds, and refusing to conduct municipal elections for the void municipality.
The failure to appropriate funds for Andong and the absence of elections in the municipality in the last four decades
are eloquent indicia of the non-recognition by the State of the existence of the town. The certifications relied upon by
Camid, issued by the DENR-CENRO and the National Statistics Office, can hardly serve the purpose of attesting to
Andongs legal efficacy. In fact, both these certifications qualify that they were issued upon the request of Camid, "to
support the restoration or re-operation of the Municipality of Andong, Lanao del Sur,"61 thus obviously conceding
that the municipality is at present inoperative.
1awphi1.nt

We may likewise pay attention to the Ordinance appended to the 1987 Constitution, which had also been relied
upon in Jimenez and San Narciso. This Ordinance, which apportioned the seats of the House of Representatives to
the different legislative districts in the Philippines, enumerates the various municipalities that are encompassed by
the various legislative districts. Andong is not listed therein as among the municipalities of Lanao del Sur, or of any
other province for that matter.62 On the other hand, the municipalities of San Andres, Alicia and Sinacaban are
mentioned in the Ordinance as part of Quezon,63 Bohol,64 and Misamis Occidental65 respectively.
How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as existing in the DILG
Certification presented by Camid? The petition fails to mention that subsequent to the ruling in Pelaez, legislation
was enacted to reconstitute these municipalities.66 It is thus not surprising that the DILG certified the existence of
these eighteen (18) municipalities, or that these towns are among the municipalities enumerated in the Ordinance
appended to the Constitution. Andong has not been similarly reestablished through statute. Clearly then, the fact
that there are valid organic statutes passed by legislation recreating these eighteen (18) municipalities is sufficient
legal basis to accord a different legal treatment to Andong as against these eighteen (18) other municipalities.
We thus assert the proper purview to Section 442(d) of the Local Government Codethat it does not serve to affirm
or reconstitute the judicially dissolved municipalities such as Andong, which had been previously created by
presidential issuances or executive orders. The provision affirms the legal personalities only of those municipalities
such as San Narciso, Alicia, and Sinacaban, which may have been created using the same infirm legal basis, yet
were fortunate enough not to have been judicially annulled. On the other hand, the municipalities judicially dissolved
in cases such as Pelaez, San Joaquin, and Malabang, remain inexistent, unless recreated through specific
legislative enactments, as done with the eighteen (18) municipalities certified by the DILG. Those municipalities
derive their legal personality not from the presidential issuances or executive orders which originally created them or
from Section 442(d), but from the respective legislative statutes which were enacted to revive them.
1a\^/phi1.net

And what now of Andong and its residents? Certainly, neither Pelaez or this decision has obliterated Andong into a

hole on the ground. The legal effect of the nullification of Andong in Pelaez was to revert the constituent barrios of
the voided town back into their original municipalities, namely the municipalities of Lumbatan, Butig and Tubaran.67
These three municipalities subsist to this day as part of Lanao del Sur,68 and presumably continue to exercise
corporate powers over the barrios which once belonged to Andong.
If there is truly a strong impulse calling for the reconstitution of Andong, the solution is through the legislature and
not judicial confirmation of void title. If indeed the residents of Andong have, all these years, been governed not by
their proper municipal governments but by a ragtag "Interim Government," then an expedient political and legislative
solution is perhaps necessary. Yet we can hardly sanction the retention of Andongs legal personality solely on the
basis of collective amnesia that may have allowed Andong to somehow pretend itself into existence despite its
judicial dissolution. Maybe those who insist Andong still exists prefer to remain unperturbed in their blissful
ignorance, like the inhabitants of the cave in Platos famed allegory. But the time has come for the light to seep in,
and for the petitioner and like-minded persons to awaken to legal reality.
WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur.

Footnotes
1 A 1954 film based on the well-known eponymous Broadway musical by Alan Jay Lerner and Frederick

Loewe. The plot pertains to a magical Scottish town touted to appear once every hundred years on some
otherworldly plain according to legend.
2 122 Phil. 965 (1965).
3 Executive Orders Nos. 93 to 121, 124 and 126 to 129. Pelaez v. Auditor General, supra note 1 at 969.
4 Pelaez v. Auditor General, supra note 1 at 970.
5 Id. at 980.
6 The Barrio Charter Act.
7 Id. at 971.
8 The particular flaws included the failure to enunciate any policy to be carried out or implemented by the

President, the absence of standards sufficiently precise to avoid the evil effects. Id. at 975. Moreover, the
creation of municipalities was declared to be a function eminently legislative in character, and not
administrative. Id. at 977.
9 Id. at 986, J. Bengzon, concurring and dissenting.
10 Id. at 983.
11 Rollo, p. 5.
12 Ibid.
13 Id. at 13.
14 Id. at 14.
15 Id. at 15.
16 Id. at 16.
17 Id. at 17.

G.R. No. 191424

THIRD DIVISION
[ G.R. No. 191424, August 07, 2013 ]

DECISION

ALFEO D. VIVAS, ON HIS BEHALF AND ON BEHALF OF THE

SHAREHOLDERS OF EUROCREDIT COMMUNITY BANK,
PETITIONER, VS. THE MONETARY BOARD OF THE BANGKO
SENTRAL NG PILIPINAS AND THE PHILIPPINE DEPOSIT
INSURANCE CORPORATION, RESPONDENTS.

MENDOZA, J.:
This is a petition for prohibition with prayer for the issuance of a status quo ante order
or writ of preliminary injunction ordering the respondents to desist from closing
EuroCredit Community Bank, Incorporated (ECBI) and from pursuing the receivership
thereof. The petition likewise prays that the management and operation of ECBI be
restored to its Board of Directors (BOD) and its officers.
The Facts
The Rural Bank of Faire, Incorporated (RBFI) was a duly registered rural banking
institution with principal office in Centro Sur, Sto. Nio, Cagayan. Record shows that
the corporate life of RBFI expired on May 31, 2005.[1] Notwithstanding, petitioner Alfeo
D. Vivas (Vivas) and his principals acquired the controlling interest in RBFI sometime in
January 2006. At the initiative of Vivas and the new management team, an internal
audit was conducted on RBFI and results thereof highlighted the dismal operation of
the rural bank. In view of those findings, certain measures calculated to revitalize the
bank were allegedly introduced.[2] On December 8, 2006, the Bangko Sentral ng
Pilipinas (BSP) issued the Certificate of Authority extending the corporate life of RBFI
for another fifty (50) years. The BSP also approved the change of its corporate name to
EuroCredit Community Bank, Incorporated, as well as the increase in the number of
the members of its BOD, from five (5) to eleven (11).[3]
Pursuant to Section 28 of Republic Act (R.A.) No. 7653, otherwise known as The New
Central Bank Act, the Integrated Supervision Department II (ISD II) of the BSP
conducted a general examination on ECBI with the cut-off date of December 31, 2007.
Shortly after the completion of the general examination, an exit conference was held
on March 27, 2008 at the BSP during which the BSP officials and examiners apprised
Vivas, the Chairman and President of ECBI, as well as the other bank officers and

members of its BOD, of the advance findings noted during the said examination. The
ECBI submitted its comments on BSPs consolidated findings and risk asset
classification through a letter, dated April 8, 2008.[4]

Sometime in April 2008, the examiners from the Department of Loans and Credit of the
BSP arrived at the ECBI and cancelled the rediscounting line of the bank. Vivas

appealed the cancellation to BSP.[5] Thereafter, the Monetary Board (MB) issued
Resolution No. 1255, dated September 25, 2008, placing ECBI under Prompt Corrective
Action (PCA) framework because of the following serious findings and supervisory
concerns noted during the general examination: 1] negative capital of ?14.674 million
and capital adequacy ratio of negative 18.42%; 2] CAMEL (Capital Asset Management
Earnings Liquidity) composite rating of 2 with a Management component rating of
1; and 3] serious supervisory concerns particularly on activities deemed unsafe or

unsound.[6] Vivas claimed that the BSP took the above courses of action due to the

joint influence exerted by a certain hostile shareholder and a former BSP examiner.[7]

Through its letter, dated September 30, 2008, the BSP furnished ECBI with a copy of
the Report of Examination (ROE) as of December 31, 2007. In addition, the BSP
directed the banks BOD and senior management to: 1] infuse fresh capital of ?22.643
million; 2] book the amount of ?28.563 million representing unbooked valuation
reserves on classified loans and other risks assets on or before October 31, 2008; and
3] take appropriate action necessary to address the violations/exceptions noted in the
examination.[8]

Vivas moved for a reconsideration of Resolution No. 1255 on the grounds of nonobservance of due process and arbitrariness. The ISD II, on several instances, had
invited the BOD of ECBI to discuss matters pertaining to the placement of the bank
under PCA framework and other supervisory concerns before making the appropriate
recommendations to the MB. The proposed meeting, however, did not materialize due
to postponements sought by Vivas.[9]

In its letter, dated February 20, 2009, the BSP directed ECBI to explain why it
transferred the majority shares of RBFI without securing the prior approval of the MB in
apparent violation of Subsection X126.2 of the Manual of Regulation for Banks (MORB).

[10] Still in another letter,[11] dated March 31, 2009, the ISD II required ECBI to
explain why it did not obtain the prior approval of the BSP anent the establishment and
operation of the banks sub-offices.

Also, the scheduled March 31, 2009 general examination of the books, records and
general condition of ECBI with the cut-off date of December 31, 2008, did not push
through. According to Vivas, ECBI asked for the deferment of the examination pending
resolution of its appeal before the MB. Vivas believed that he was being treated unfairly
because the letter of authority to examine allegedly contained a clause which pertained

to the Anti-Money Laundering Law and the Bank Secrecy Act.[12]

In its letter,[13] dated May 8, 2009, the BSP

for another annual examination and that the
would not prevent the BSP from conducting
of R.A. No. 7653.

The MB, on the other hand, posited that ECBI unjustly refused to allow the BSP
examiners from examining and inspecting its books and records, in violation of
Sections 25 and 34 of R.A. No. 7653.
informed ECBI that it was already due
pendency of its appeal before the MB
another one as mandated by Section 28
In view of ECBIs refusal to comply with the required examination, the MB issued
Resolution No. 726,[14] dated May 14, 2009, imposing monetary penalty/fine on ECBI,
and referred the matter to the Office of the Special Investigation (OSI) for the filing of

another deferment of the

issues subject of its appeal
country. The ISD II denied
to proceed as previously

appropriate legal action. The BSP also wrote a letter,[15] dated May 26, 2009, advising
ECBI to comply with MB Resolution No. 771, which essentially required the bank to
follow its directives. On May 28, 2009, the ISD II reiterated its demand upon the ECBI
BOD to allow the BSP examiners to conduct a general examination on June 3, 2009.
[16]

In its June 2, 2009 Letter-Reply,[17] ECBI asked for

examination due to the pendency of certain unresolved
before the MB, and because Vivas was then out of the
ECBIs request and ordered the general examination
scheduled.[18]
Thereafter, the MB issued Resolution No. 823,[19] dated June 4, 2009, approving the
issuance of a cease and desist order against ECBI, which enjoined it from pursuing
certain acts and transactions that were considered unsafe or unsound banking
practices, and from doing such other acts or transactions constituting fraud or might
result in the dissipation of its assets.
On June 10, 2009, the OSI filed with the Department of Justice (DOJ) a complaint for
Estafa Through Falsification of Commercial Documents against certain officials and
employees of ECBI. Meanwhile, the MB issued Resolution No. 1164,[20] dated August
13, 2009, denying the appeal of ECBI from Resolution No. 1255 which placed it under
PCA framework. On November 18, 2009, the general examination of the books and
records of ECBI with the cut-off date of September 30, 2009, was commenced and
ended in December 2009. Later, the BSP officials and examiners met with the
representatives of ECBI, including Vivas, and discussed their findings.[21] On December
7, 2009, the ISD II reminded ECBI of the non-submission of its financial audit reports
for the years 2007 and 2008 with a warning that failure to submit those reports and
the written explanation for such omission shall result in the imposition of a monetary
penalty.[22] In a letter, dated February 1, 2010, the ISD II informed ECBI of MB
Resolution No. 1548 which denied its request for reconsideration of Resolution No. 726.

On March 4, 2010, the MB issued Resolution No. 276[23] placing ECBI under
receivership in accordance with the recommendation of the ISD II which reads:

On the basis of the examination findings as of 30 September 2009 as

reported by the Integrated Supervision Department (ISD) II, in its
memorandum dated 17 February 2010, which findings showed that the
Eurocredit Community Bank, Inc. a Rural Bank (Eurocredit Bank) (a) is
unable to pay its liabilities as they become due in the ordinary course of
business; (b) has insufficient realizable assets to meet liabilities; (c) cannot
continue in business without involving probable losses to its depositors and
creditors; and (d) has willfully violated a cease and desist order of the
Monetary Board for acts or transactions which are considered unsafe and
unsound banking practices and other acts or transactions constituting fraud
or dissipation of the assets of the institution, and considering the failure of
the Board of Directors/management of Eurocredit Bank to restore the
banks financial health and viability despite considerable time given to
address the banks financial problems, and that the bank had been accorded
due process, the Board, in accordance with Section 30 of Republic Act No.
7653 (The New Central Bank Act), approved the recommendation of ISD II
as follows:

1. To prohibit the Eurocredit Bank from doing business in the Philippines

and to place its assets and affairs under receivership; and

2. To designate the Philippine Deposit Insurance Corporation as Receiver

of the bank.

Assailing MB Resolution No. 276, Vivas filed this petition for prohibition before this
Court, ascribing grave abuse of discretion to the MB for prohibiting ECBI from
continuing its banking business and for placing it under receivership. The petitioner
presents the following
ARGUMENTS:

(a) It is grave abuse of discretion amounting to loss of jurisdiction

to apply the general law embodied in Section 30 of the New
Central Bank Act as opposed to the specific law embodied in
Sections 11 and 14 of the Rural Banks Act of 1992.

(b) Even if it assumed that Section 30 of the New Central Bank Act
is applicable, it is still the gravest abuse of discretion
amounting to lack or excess of jurisdiction to execute the law
with manifest arbitrariness, abuse of discretion, and bad faith,
violation of constitutional rights and to further execute a
mandate well in excess of its parameters.

(c) The power delegated in favor of the Bangko Sentral ng Pilipinas

to place rural banks under receiverships is unconstitutional for

being a diminution or invasion of the powers of the Supreme
Court, in violation of Section 2, Article VIII of the Philippine
Constitution.[24]
Vivas submits that the respondents committed grave abuse of discretion when they
erroneously applied Section 30 of R.A. No. 7653, instead of Sections 11 and 14 of the
Rural Bank Act of 1992 or R.A. No. 7353. He argues that despite the deficiencies,
inadequacies and oversights in the conduct of the affairs of ECBI, it has not committed
any financial fraud and, hence, its placement under receivership was unwarranted and
improper. He posits that, instead, the BSP should have taken over the management of
ECBI and extended loans to the financially distrained bank pursuant to Sections 11 and
14 of R.A. No. 7353 because the BSPs power is limited only to supervision and
management take-over of banks.

The Courts Ruling

He contends that the implementation of the questioned resolution was tainted with
arbitrariness and bad faith, stressing that ECBI was placed under receivership without
due and prior hearing in violation of his and the banks right to due process. He adds
that respondent PDIC actually closed ECBI even in the absence of any directive to this
effect. Lastly, Vivas assails the constitutionality of Section 30 of R.A. No. 7653 claiming
that said provision vested upon the BSP the unbridled power to close and place under
receivership a hapless rural bank instead of aiding its financial needs. He is of the view
that such power goes way beyond its constitutional limitation and has transformed the
BSP to a sovereign in its own kingdom of banks.[25]

The petition must fail.

Vivas Availed of the Wrong Remedy

certiorari may only be filed by the stockholders of record representing the

majority of the capital stock within ten (10) days from receipt by the board
of directors of the institution of the order directing receivership, liquidation
or conservatorship.
x x x x. [Emphases supplied]
Prohibition is already unavailing

Granting that a petition for prohibition is allowed, it is already an ineffective remedy

under the circumstances obtaining. Prohibition or a writ of prohibition is that process
by which a superior court prevents inferior courts, tribunals, officers, or persons from
usurping or exercising a jurisdiction with which they have not been vested by law, and
confines them to the exercise of those powers legally conferred. Its office is to restrain
subordinate courts, tribunals or persons from exercising jurisdiction over matters not
within its cognizance or exceeding its jurisdiction in matters of which it has cognizance.

[26] In our jurisdiction, the rule on prohibition is enshrined in Section 2, Rule 65 of the
Rules on Civil Procedure, to wit:

Sec. 2. Petition for prohibition - When the proceedings of any tribunal,

corporation, board, officer or person, whether exercising judicial, quasijudicial or ministerial functions, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal or any other plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty and praying that the judgment be rendered commanding the
respondent to desist from further proceedings in the action or matter
specified therein, or otherwise granting such incidental reliefs as the law
and justice require.
x x x x.

Indeed, prohibition is a preventive remedy seeking that a judgment be rendered which

would direct the defendant to desist from continuing with the commission of an act

remedy for acts already accomplished.[28]

perceived to be illegal.[27] As a rule, the proper function of a writ of prohibition is to

prevent the doing of an act which is about to be done. It is not intended to provide a

Section 30.

To begin with, Vivas availed of the wrong remedy. The MB issued Resolution No. 276,
dated March 4, 2010, in the exercise of its power under R.A. No. 7653. Under Section
30 thereof, any act of the MB placing a bank under conservatorship, receivership or
liquidation may not be restrained or set aside except on a petition for certiorari.
Pertinent portions of R.A. 7653 read:

x x x x.

not lie to restrain an act that is already a fait accompli.[29]

Though couched in imprecise terms, this petition for prohibition apparently seeks to
prevent the acts of closing of ECBI and placing it under receivership. Resolution No.
276, however, had already been issued by the MB and the closure of ECBI and its
placement under receivership by the PDIC were already accomplished. Apparently, the
remedy of prohibition is no longer appropriate. Settled is the rule that prohibition does

The actions of the Monetary Board taken under this section or under Section
29 of this Act shall be final and executory, and may not be restrained or set
aside by the court except on petition for certiorari on the ground that
the action taken was in excess of jurisdiction or with such grave abuse of
discretion as to amount to lack or excess of jurisdiction. The petition for

The Petition Should Have Been Filed in the CA

Even if treated as a petition for certiorari, the petition should have been filed with the
CA. Section 4 of Rule 65 reads:
Section 4. When and where petition filed. The petition shall be filed not
later than sixty (60) days from notice of the judgment, order or resolution.
In case a motion for reconsideration or new trial is timely filed, whether
such motion is required or not, the sixty (60) day period shall be counted
from notice of the denial of said motion.
The petition shall be filed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in
the Regional Trial Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be filed in the Court of Appeals
whether or not the same is in aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the
acts or omissions of a quasi-judicial agency, unless otherwise provided
by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals. [Emphases supplied]
That the MB is a quasi-judicial agency was already settled and reiterated in the case of
Bank of Commerce v. Planters Development Bank And Bangko Sentral Ng Pilipinas.[30]
Doctrine of Hierarchy of Courts
Even in the absence of such provision, the petition is also dismissible because it simply
ignored the doctrine of hierarchy of courts. True, the Court, the CA and the RTC have
original concurrent jurisdiction to issue writs of certiorari, prohibition and mandamus.
The concurrence of jurisdiction, however, does not grant the party seeking any of the
extraordinary writs the absolute freedom to file a petition in any court of his choice.
The petitioner has not advanced any special or important reason which would allow a
direct resort to this Court. Under the Rules of Court, a party may directly appeal to this
Court only on pure questions of law.[31] In the case at bench, there are certainly
factual issues as Vivas is questioning the findings of the investigating team.
Strict observance of the policy of judicial hierarchy demands that where the issuance of
the extraordinary writs is also within the competence of the CA or the RTC, the special
action for the obtainment of such writ must be presented to either court. As a rule, the
Court will not entertain direct resort to it unless the redress desired cannot be obtained
in the appropriate lower courts; or where exceptional and compelling circumstances,
such as cases of national interest and with serious implications, justify the availment of
the extraordinary remedy of writ of certiorari, prohibition, or mandamus calling for the
exercise of its primary jurisdiction.[32] The judicial policy must be observed to prevent

an imposition on the precious time and attention of the Court.

The MB Committed No Grave Abuse of Discretion

In any event, no grave abuse of discretion can be attributed to the MB for the issuance
of the assailed Resolution No. 276.

Vivas insists that the circumstances of the case warrant the application of Section 11 of
R.A. No. 7353, which provides:

Sec. 11. The power to supervise the operation of any rural bank by the
Monetary Board as herein indicated shall consist in placing limits to the
maximum credit allowed to any individual borrower; in prescribing the
interest rate, in determining the loan period and loan procedures, in
indicating the manner in which technical assistance shall be extended to
rural banks, in imposing a uniform accounting system and manner of
keeping the accounts and records of rural banks; in instituting periodic
surveys of loan and lending procedures, audits, test-check of cash and
other transactions of the rural banks; in conducting training courses for
personnel of rural banks; and, in general, in supervising the business
operations of the rural banks.

The Central Bank shall have the power to enforce the laws, orders,
instructions, rules and regulations promulgated by the Monetary Board,
applicable to rural banks; to require rural banks, their directors, officers and
agents to conduct and manage the affairs of the rural banks in a lawful and
orderly manner; and, upon proof that the rural bank or its Board of
Directors, or officers are conducting and managing the affairs of the bank in
a manner contrary to laws, orders, instructions, rules and regulations
promulgated by the Monetary Board or in a manner substantially prejudicial
to the interest of the Government, depositors or creditors, to take over the
management of such bank when specifically authorized to do so by the
Monetary Board after due hearing process until a new board of directors
and officers are elected and qualified without prejudice to the prosecution of
the persons responsible for such violations under the provisions of Sections
32, 33 and 34 of Republic Act No. 265, as amended.
x x x x.

The thrust of Vivas argument is that ECBI did not commit any financial fraud and,
hence, its placement under receivership was unwarranted and improper. He asserts
that, instead, the BSP should have taken over the management of ECBI and extended
loans to the financially distrained bank pursuant to Sections 11 and 14 of R.A. No.
7353 because the BSPs power is limited only to supervision and management takeover of banks, and not receivership.

Vivas argues that implementation of the questioned resolution was tainted with
arbitrariness and bad faith, stressing that ECBI was placed under receivership without
due and prior hearing, invoking Section 11 of R.A. No. 7353 which states that the BSP
may take over the management of a rural bank after due hearing.[33] He adds that
because R.A. No. 7353 is a special law, the same should prevail over R.A. No. 7653
which is a general law.
The Court has taken this into account, but it appears from all over the records that
ECBI was given every opportunity to be heard and improve on its financial standing.
The records disclose that BSP officials and examiners met with the representatives of
ECBI, including Vivas, and discussed their findings.[34] There were also reminders that
ECBI submit its financial audit reports for the years 2007 and 2008 with a warning that
failure to submit them and a written explanation of such omission shall result in the
imposition of a monetary penalty.[35] More importantly, ECBI was heard on its motion
for reconsideration. For failure of ECBI to comply, the MB came out with Resolution No.
1548 denying its request for reconsideration of Resolution No. 726. Having been heard
on its motion for reconsideration, ECBI cannot claim that it was deprived of its right
under the Rural Bank Act.
Close Now, Hear Later
At any rate, if circumstances warrant it, the MB may forbid a bank from doing business
and place it under receivership without prior notice and hearing. Section 30 of R.A. No.
7653 provides, viz:
Sec. 30. Proceedings in Receivership and Liquidation. Whenever, upon
report of the head of the supervising or examining department, the
Monetary Board finds that a bank or quasi-bank:
(a) is unable to pay its liabilities as they become due in the ordinary course
of business: Provided, That this shall not include inability to pay caused by
extraordinary demands induced by financial panic in the banking
community;
(b) has insufficient realizable assets, as determined by the Bangko Sentral,
to meet its liabilities; or
(c) cannot continue in business without involving probable losses to its
depositors or creditors; or
(d) has wilfully violated a cease and desist order under Section 37 that has
become final, involving acts or transactions which amount to fraud or a
dissipation of the assets of the institution; in which cases, the Monetary
Board may summarily and without need for prior hearing forbid the
institution from doing business in the Philippines and designate the

Philippine Deposit Insurance Corporation as receiver of the banking

institution. [Emphases supplied.]
x x x x.

Accordingly, there is no conflict which would call for the application of the doctrine that
a special law should prevail over a general law. It must be emphasized that R.A .No.
7653 is a later law and under said act, the power of the MB over banks, including rural
banks, was increased and expanded. The Court, in several cases, upheld the power of
the MB to take over banks without need for prior hearing. It is not necessary inasmuch
as the law entrusts to the MB the appreciation and determination of whether any or all
of the statutory grounds for the closure and receivership of the erring bank are
present. The MB, under R.A. No. 7653, has been invested with more power of closure
and placement of a bank under receivership for insolvency or illiquidity, or because the
banks continuance in business would probably result in the loss to depositors or
creditors. In the case of Bangko Sentral Ng Pilipinas Monetary Board v. Hon. Antonio-

Valenzuela,[36] the Court reiterated the doctrine of close now, hear later, stating that
it was justified as a measure for the protection of the public interest. Thus:

The "close now, hear later doctrine has already been justified as a
measure for the protection of the public interest. Swift action is called for
on the part of the BSP when it finds that a bank is in dire straits. Unless
adequate and determined efforts are taken by the government against
distressed and mismanaged banks, public faith in the banking system is
certain to deteriorate to the prejudice of the national economy itself, not to
mention the losses suffered by the bank depositors, creditors, and
stockholders, who all deserve the protection of the government.[37]
[Emphasis supplied]

In Rural Bank of Buhi, Inc. v. Court of Appeals,[38] the Court also wrote that

x x x due process does not necessarily require a prior hearing; a

hearing or an opportunity to be heard may be subsequent to the closure.
One can just imagine the dire consequences of a prior hearing: bank runs
would be the order of the day, resulting in panic and hysteria. In the
process, fortunes may be wiped out and disillusionment will run the gamut
of the entire banking community.[39]

The doctrine is founded on practical and legal considerations to obviate unwarranted

dissipation of the banks assets and as a valid exercise of police power to protect the

depositors, creditors, stockholders, and the general public.[40] Swift, adequate and
determined actions must be taken against financially distressed and mismanaged
banks by government agencies lest the public faith in the banking system deteriorate
to the prejudice of the national economy.

Accordingly, the MB can immediately implement its resolution prohibiting a banking

institution to do business in the Philippines and, thereafter, appoint the PDIC as

receiver. The procedure for the involuntary closure of a bank is summary and
expeditious in nature. Such action of the MB shall be final and executory, but may be
later subjected to a judicial scrutiny via a petition for certiorari to be filed by the
stockholders of record of the bank representing a majority of the capital stock.
Obviously, this procedure is designed to protect the interest of all concerned, that is,
the depositors, creditors and stockholders, the bank itself and the general public. The
protection afforded public interest warrants the exercise of a summary closure.
In the case at bench, the ISD II submitted its memorandum, dated February 17, 2010,
containing the findings noted during the general examination conducted on ECBI with
the cut-off date of September 30, 2009. The memorandum underscored the inability of
ECBI to pay its liabilities as they would fall due in the usual course of its business, its
liabilities being in excess of the assets held. Also, it was noted that ECBIs continued
banking operation would most probably result in the incurrence of additional losses to
the prejudice of its depositors and creditors. On top of these, it was found that ECBI
had willfully violated the cease-and-desist order of the MB issued in its June 24, 2009
Resolution, and had disregarded the BSP rules and directives. For said reasons, the MB
was forced to issue the assailed Resolution No. 276 placing ECBI under receivership. In
addition, the MB stressed that it accorded ECBI ample time and opportunity to address
its monetary problem and to restore and improve its financial health and viability but it
failed to do so.
In light of the circumstances obtaining in this case, the application of the corrective
measures enunciated in Section 30 of R.A. No. 7653 was proper and justified.
Management take-over under Section 11 of R.A. No. 7353 was no longer feasible
considering the financial quagmire that engulfed ECBI showing serious conditions of
insolvency and illiquidity. Besides, placing ECBI under receivership would effectively put
a stop to the further draining of its assets.
No Undue Delegation of Legislative Power
Lastly, the petitioner challenges the constitutionality of Section 30 of R.A. No. 7653, as
the legislature granted the MB a broad and unrestrained power to close and place a
financially troubled bank under receivership. He claims that the said provision was an
undue delegation of legislative power. The contention deserves scant consideration.
Preliminarily, Vivas attempt to assail the constitutionality of Section 30 of R.A. No.
7653 constitutes collateral attack on the said provision of law. Nothing is more settled
than the rule that the constitutionality of a statute cannot be collaterally attacked as
constitutionality issues must be pleaded directly and not collaterally.[41] A collateral
attack on a presumably valid law is not permissible. Unless a law or rule is annulled in
a direct proceeding, the legal presumption of its validity stands.[42]
Be that as it may, there is no violation of the non-delegation of legislative power. The

rationale for the constitutional proscription is that legislative discretion as to the

substantive contents of the law cannot be delegated. What can be delegated is the
discretion to determine how the law may be enforced, not what the law shall be. The
ascertainment of the latter subject is a prerogative of the legislature. This prerogative
cannot be abdicated or surrendered by the legislature to the delegate.[43]

There are two accepted tests to determine whether or not there is a valid delegation
of legislative power, viz, the completeness test and the sufficient standard test. Under
the first test, the law must be complete in all its terms and conditions when it leaves
the legislature such that when it reaches the delegate the only thing he will have to do
is enforce it. Under the sufficient standard test, there must be adequate guidelines or
stations in the law to map out the boundaries of the delegate's authority and prevent
the delegation from running riot. Both tests are intended to prevent a total
transference of legislative authority to the delegate, who is not allowed to step into the
shoes of the legislature and exercise a power essentially legislative.[44]

In this case, under the two tests, there was no undue delegation of legislative authority
in the issuance of R.A. No. 7653. To address the growing concerns in the banking
industry, the legislature has sufficiently empowered the MB to effectively monitor and
supervise banks and financial institutions and, if circumstances warrant, to forbid them
to do business, to take over their management or to place them under receivership.
The legislature has clearly spelled out the reasonable parameters of the power
entrusted to the MB and assigned to it only the manner of enforcing said power. In
other words, the MB was given a wide discretion and latitude only as to how the law
should be implemented in order to attain its objective of protecting the interest of the
public, the banking industry and the economy.

WHEREFORE, the petition for prohibition is DENIED.

SO ORDERED.

Velasco Jr., (Chairperson), Peralta, Abad, and Leonen, JJ., concur.

[1] Rollo, p. 155.

[2] Id. at 8-11.
[3] Id. at 115.
[4] Id. at 116.
[5] Id. at 12.