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GENERAL CONSIDERATIONS

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case
3010, the dispositive portion of which reads:

MACARIOLA VS ASUNCION
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant,
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B.
Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia
Muoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case
was referred on October 28, 1968 for investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition
filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant,
concerning the properties left by the deceased Francisco Reyes, the common father of
the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged among other
things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco
Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the
only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the deceased by his second marriage with
Irene Ondez; c) the properties left by the deceased were all the conjugal properties of the
latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased
during his second marriage; d) if there was any partition to be made, those conjugal
properties should first be partitioned into two parts, and one part is to be adjudicated
solely to defendant it being the share of the latter's deceased mother, Felisa Espiras, and
the other half which is the share of the deceased Francisco Reyes was to be divided
equally among his children by his two marriages.

IN VIEW OF THE FOREGOING CONSIDERATIONS, the


Court, upon a preponderance of evidence, finds and so holds, and
hereby renders judgment (1) Declaring the plaintiffs Luz R.
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and
Priscilla Reyes as the only children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring
the plaintiff Sinforosa R. Bales to have been an illegitimate child
of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475,
4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses Francisco Reyes Diaz and
Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No.
3416 as belonging to the spouses Francisco Reyes Diaz and Irene
Ondez in common partnership; (5) Declaring that 1/2 of Lot No.
1184 as belonging exclusively to the deceased Francisco Reyes
Diaz; (6) Declaring the defendant Bernardita R. Macariola, being
the only legal and forced heir of her mother Felisa Espiras, as the
exclusive owner of one-half of each of Lots Nos. 4474, 4475,
4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2)
of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as
belonging to the estate of Francisco Reyes Diaz; (7) Declaring
Irene Ondez to be the exclusive owner of one-half (1/2) of Lot
No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416;
the remaining one-half (1/2) of Lot 2304 and the remaining onehalf (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the
estate of Francisco Reyes Diaz; (8) Directing the division or
partition of the estate of Francisco Reyes Diaz in such a manner
as to give or grant to Irene Ondez, as surviving widow of
Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of
the whole estate of Francisco Reyes Diaz (Art. 996 in relation to
Art. 892, par 2, New Civil Code), and the remaining portion of
the estate to be divided among the plaintiffs Sinforosa R. Bales,
Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes,
Priscilla Reyes and defendant Bernardita R. Macariola, in such a
way that the extent of the total share of plaintiff Sinforosa R.
Bales in the hereditary estate shall not exceed the equivalent of
two-fifth (2/5) of the total share of any or each of the other
plaintiffs and the defendant (Art. 983, New Civil Code), each of
the latter to receive equal shares from the hereditary estate,
(Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro,
O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days
after this judgment shall have become final to submit to this
court, for approval a project of partition of the hereditary estate in
the proportion above indicated, and in such manner as the parties
may, by agreement, deemed convenient and equitable to them

taking into consideration the location, kind, quality, nature and


value of the properties involved; (10) Directing the plaintiff
Sinforosa R. Bales and defendant Bernardita R. Macariola to pay
the costs of this suit, in the proportion of one-third (1/3) by the
first named and two-thirds (2/3) by the second named; and (I 1)
Dismissing all other claims of the parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and on October 16,
1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was not signed by the parties
themselves but only by the respective counsel of plaintiffs and defendant, Judge
Asuncion approved it in his Order dated October 23, 1963, which for convenience is
quoted hereunder in full:
The parties, through their respective counsels, presented to this
Court for approval the following project of partition:
COMES NOW, the plaintiffs and the defendant in the aboveentitled case, to this Honorable Court respectfully submit the
following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong
exclusively to Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters
along the eastern part of the lot shall be awarded likewise to
Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa
Reyes Bales;

WHEREFORE, it is respectfully prayed that the Project of


Partition indicated above which is made in accordance with the
decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban
City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to
have signed this Project of Partition, nevertheless, upon assurance
of both counsels of the respective parties to this Court that the
Project of Partition, as above- quoted, had been made after a
conference and agreement of the plaintiffs and the defendant
approving the above Project of Partition, and that both lawyers
had represented to the Court that they are given full authority to
sign by themselves the Project of Partition, the Court, therefore,
finding the above-quoted Project of Partition to be in accordance
with law, hereby approves the same. The parties, therefore, are
directed to execute such papers, documents or instrument
sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the
respective parties, as outlined in the Project of Partition and the
delivery of the respective properties adjudicated to each one in
view of said Project of Partition, and to perform such other acts as
are legal and necessary to effectuate the said Project of Partition.
SO ORDERED.

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters


along the western part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales;

Given in Tacloban City, this 23rd day of October, 1963.

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz
Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares;

EXH. B.

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after
taking the portions awarded under item (2) and (4) above shall be
awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes and Priscilla Reyes in equal shares, provided,
however that the remaining portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.

(SGD) ELIAS B. ASUNCION Judge

The above Order of October 23, 1963, was amended on November 11, 1963, only for
the purpose of giving authority to the Register of Deeds of the Province of Leyte to
issue the corresponding transfer certificates of title to the respective adjudicatees in
conformity with the project of partition (see Exh. U).
One of the properties mentioned in the project of partition was Lot 1184 or rather onehalf thereof with an area of 15,162.5 sq. meters. This lot, which according to the
decision was the exclusive property of the deceased Francisco Reyes, was adjudicated in

said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all
surnamed Reyes in equal shares, and when the project of partition was approved by the
trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated
as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's
court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq.
meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban
(Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with
an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion
(Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh.
F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries
Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were
Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and
the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs.
Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The
Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to
as "TRADERS" were registered with the Securities and Exchange Commission only on
January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968
alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of
the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of
the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial
Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder
and a ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was
guilty of coddling an impostor and acted in disregard of judicial decorum by closely fraternizing with a certain
Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and
in fact his name does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and [4]
that there was a culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16,
1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice
Cecilia Muoz Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the
said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge
should be reprimanded or warned in connection with the first cause of action alleged in the complaint, and for
the second cause of action, respondent should be warned in case of a finding that he is prohibited under the law
to engage in business. On the third and fourth causes of action, Justice Palma recommended that respondent
Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein
instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the
annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two orders
issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent
conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For
one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a real party in interest
when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to
respondent Judge and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing
Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she
was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of
Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31,
1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cases against defendants Serafin
P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc.,
Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and
Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff
therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed
and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National
Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion
of which reads as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction
to take cognizance of the issue of the legality and validity of the Project of Partition
[Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias
B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND PESOS
[P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS
[P200,000.001 for exemplary damages;
(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for
nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for
Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA


VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE
DECEASED GERARDO VILLASIN
(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of
the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA
R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE
NO. 3010
(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer,
Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT BONIFACIO
RAMO
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon
perfection of the appeal on February 22, 1971.

jurisdiction or territory they exercise their respective functions; this prohibition includes
the act of acquiring by assignment and shall apply to lawyers, with respect to the
property and rights which may be the object of any litigation in which they may take
part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the
subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to
operate, the sale or assignment of the property must take place during the pendency of the litigation involving
the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs.
Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the
decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the
parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer subject
of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23,
1963 and the amended order dated November 11, 1963 approving the October 16, 1963 project of partition
made pursuant to the June 8, 1963 decision, had long become final for there was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in
Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from
three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the
decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was
adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita
Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot 1184-A to
1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT
No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to
respondent Judge and his wife who declared the same for taxation purposes only. The subsequent sale
on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and interest in said
Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president
and his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and of
the subsequent two aforesaid orders therein approving the project of partition.

I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause
of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code
in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case
No. 3010. 'That Article provides:
Article 1491. The following persons cannot acquire by purchase, even at a public or
judicial action, either in person or through the mediation of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and
other officers and employees connected with the administration of justice, the property
and rights in litigation or levied upon an execution before the court within whose

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court
of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the
two orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same,
however, is of no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio
Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010
and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no
longer subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect
the aforesaid facts that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected
and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after
the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition,
and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New
Civil Code.

1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a).
On tills certificate of title the Order dated November 11, 1963, (Exh. U) approving the
project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by
Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and
unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of partition.
In this connection, We agree with the findings of the Investigating Justice thus:

2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes


Macariola onOctober 22, 1963, conveying to Dr. Hector Decena the one-fourth share of
the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she
was the absolute owner of said one-fourth share, the same having been adjudicated to
her as her share in the estate of her father Francisco Reyes Diaz as per decision of the
Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was
duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh.
9-e).

And so we are now confronted with this all-important question whether or not the
acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the
whole lot to "TRADERS" of which respondent was the President and his wife the
Secretary, was intimately related to the Order of respondent approving the project of
partition, Exh. A.
Respondent vehemently denies any interest or participation in the transactions between
the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no
evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E,
in mediation for him and his wife. (See p. 14 of Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen,
credible and sincere, and I believe him when he testified that he bought Lot 1184-E in
good faith and for valuable consideration from the Reyeses without any intervention of,
or previous understanding with Judge Asuncion (pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in approving the project of
partition although it was not signed by the parties, We quote with approval the findings of the Investigating
Justice, as follows:
1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed by respondent in that respect
was done in good faith as according to Judge Asuncion he was assured by Atty.
Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his
client to submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969).
While it is true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of
respondent, his affidavit being the only one that was presented as respondent's Exh. 10,
certain actuations of Mrs. Macariola lead this investigator to believe that she knew the
contents of the project of partition, Exh. A, and that she gave her conformity thereto. I
refer to the following documents:

In connection with the abovementioned documents it is to be noted that in the project of


partition dated October 16, 1963, which was approved by respondent on October 23,
1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4
thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the preparation
of the project of partition.
Counsel for complainant stresses the view, however, that the latter sold her one-fourth
share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the
project of partition, Exh. A. Such contention is absurd because from the decision, Exh.
C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of Francisco
Reyes Diaz while the other half of said one-fourth was the share of complainant's
mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the
one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant
became the owner of the entire one-fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it
was for no other reason than that she was wen aware of the distribution of the properties
of her deceased father as per Exhs. A and B. It is also significant at this point to state
that Mrs. Macariola admitted during the cross-examination that she went to Tacloban
City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28,
1968) from which we can deduce that she could not have been kept ignorant of the
proceedings in civil case 3010 relative to the project of partition.
Complainant also assails the project of partition because according to her the properties
adjudicated to her were insignificant lots and the least valuable. Complainant, however,
did not present any direct and positive evidence to prove the alleged gross inequalities in
the choice and distribution of the real properties when she could have easily done so by
presenting evidence on the area, location, kind, the assessed and market value of said
properties. Without such evidence there is nothing in the record to show that there were
inequalities in the distribution of the properties of complainant's father (pp. 386389,
rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code
in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however,
improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial
Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and
his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his
everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it was
unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece of property
that was or had been in litigation in his court and caused it to be transferred to a corporation of which he and
his wife were ranking officers at the time of such transfer. One who occupies an exalted position in the
judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of
justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for
doubt and mistrust in the uprightness of his administration of justice. In this particular case of respondent, he
cannot deny that the transactions over Lot 1184-E are damaging and render his actuations open to suspicion
and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and
that he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless
have refrained from buying it for himself and transferring it to a corporation in which he and his wife were
financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010,
the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations
and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs
1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and
Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to
engage in business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by proxy,
nor can they hold any office or have any direct, administrative, or financial intervention
in commercial or industrial companies within the limits of the districts, provinces, or
towns in which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance are
temporarily discharging the functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in commerce in a
determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce
which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as

it regulates the relationship between the government and certain public officers and employees, like justices
and judges.
Political Law has been defined as that branch of public law which deals with the organization and operation of
the governmental organs of the State and define the relations of the state with the inhabitants of its territory
(People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional
law, law of public corporations, administrative law including the law on public officers and elections.
Specifically, Article 14 of the Code of Commerce partakes more of the nature of an administrative law because
it regulates the conduct of certain public officers and employees with respect to engaging in business: hence,
political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with
some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was
extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction
on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the
Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated
because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or
not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to another, either
following a conquest or otherwise, ... those laws which are political in their nature and
pertain to the prerogatives of the former government immediately cease upon the
transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws of the
new sovereign continue in force without the express assent or affirmative act of the
conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However,
such political laws of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the conqueror shall so
declare by affirmative act of the commander-in-chief during the war, or by Congress in
time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In
the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511,
542, 7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held
that the relations of the inhabitants with each other undergo any
change. Their relations with their former sovereign are dissolved,
and new relations are created between them and the government
which has acquired their territory. The same act which transfers
their country, transfers the allegiance of those who remain in it;
and the law which may be denominated political, is necessarily

changed, although that which regulates the intercourse and


general conduct of individuals, remains in force, until altered by
the newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of
the public law that on acquisition of territory the previous political relations of the ceded region are totally
abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the
Code of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of
the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot
apply to the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of
Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in
any business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any Iaw from having any
interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that
respondent participated or intervened in his official capacity in the business or transactions of the Traders
Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which
respondent participated has obviously no relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of
First Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code
which has a similar prohibition on public officers against directly or indirectly becoming interested in any
contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be
subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or
transactions; and, hence, the official who intervenes in contracts or transactions which have no relation to his
office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon
C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue advantage in its
business operations by reason of respondent's financial involvement in it, or that the corporation benefited in
one way or another in any case filed by or against it in court. It is undisputed that there was no case filed in the
different branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or

defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales,
et al.," wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be
noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November
2, 1970 by CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the
corporation, having disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935
and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the
Judiciary from engaging or having interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does
not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges
may engage in teaching or other vocation not involving the practice of law after office hours but with the
permission of the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as
heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America,
because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges
of a property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to
respondent Judge because the sale of the lot in question to him took place after the finality of his decision in
Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no
longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act
of 1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation,
or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a
written permission from the head of department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph
speaks of a prohibition by the Constitution or law on any public officer from having any interest in any
business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any
officer or employee in the civil service, that is, engaging in private business without a written permission from
the Department Head may not constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service
Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated
thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said
Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking without a written permission
from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic
Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973
Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the
Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct
and inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own
motion, or upon information of the Secretary (now Minister) of Justice to conduct the corresponding
investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the
discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline
judges of inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of
the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service,
remove any subordinate officer or employee from the service, demote him in rank, suspend him for not more
than one year without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of
Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees subject to the
disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of
the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil
Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No.
2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the
government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be
considered as a ground for disciplinary action against judges because to recognize the same as applicable to
them, would be adding another ground for the discipline of judges and, as aforestated, Section 67 of the
Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who
has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all
administrative cases against permanent officers and employees in the competitive service, and, except as
provided by law, to have final authority to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe
standards, guidelines and regulations governing the administration of discipline" (emphasis supplied). There is
no question that a judge belong to the non-competitive or unclassified service of the government as a
Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that "...
in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and
employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of
Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in private business by joining the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the
provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices
Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act
of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial
Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises which are apt to
be involved in litigation in his court; and, after his accession to the bench, he should not

retain such investments previously made, longer than a period sufficient to enable him to
dispose of them without serious loss. It is desirable that he should, so far as reasonably
possible, refrain from all relations which would normally tend to arouse the suspicion
that such relations warp or bias his judgment, or prevent his impartial attitude of mind in
the administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31,
1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the
aforesaid corporation did not in anyway benefit in any case filed by or against it in court as there was no case
filed in the different branches of the Court of First Instance of Leyte from the time of the drafting of the
Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and
the eventual withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by
respondent and his wife of their shares in the corporation only 22 days after the incorporation of the
corporation, indicates that respondent realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation for their immediate
withdrawal from the firm after its incorporation and before it became involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the
law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice
that respondent Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the
pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that respondent associated
and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said
Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of
the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the bar. I
see no reason for disbelieving this assertion of respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorney-atlaw to the extent of putting up a signboard with his name and the words "Attorney-at
Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and
any person for that matter to have accepted that statement on its face value. "Now with
respect to the allegation of complainant that respondent is guilty of fraternizing with
Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr.
Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent
guilty of violating any canon of judicial ethics as long as his friendly relations with
Dominador A. Tan and family did not influence his official actuations as a judge where
said persons were concerned. There is no tangible convincing proof that herein
respondent gave any undue privileges in his court to Dominador Arigpa Tan or that the
latter benefitted in his practice of law from his personal relations with respondent, or

that he used his influence, if he had any, on the Judges of the other branches of the Court
to favor said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain as much as
possible from maintaining close friendly relations with practising attorneys and litigants
in his court so as to avoid suspicion 'that his social or business relations or friendship
constitute an element in determining his judicial course" (par. 30, Canons of Judicial
Ethics), but if a Judge does have social relations, that in itself would not constitute a
ground for disciplinary action unless it be clearly shown that his social relations be
clouded his official actuations with bias and partiality in favor of his friends (pp. 403405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not
violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in
business by joining a private corporation during his incumbency as judge of the Court of First Instance of
Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as
a member of the Judiciary must not only be characterized with propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY
REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

THE HOUSE OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE VENECIA,


THE SENATE, REPRESENTED BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND HENEDINA RAZONABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF
THE PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

SO ORDERED.
x---------------------------------------------------------x
G.R. No. 160263 November 10, 2003

FRANCISCO VS HOR
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160261

November 10, 2003

ERNESTO B. FRANCISCO, JR., petitioner,


NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA MANGGAGAWANG PILIPINO, INC.,
ITS OFFICERS AND MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.

ARTURO M. DE CASTRO AND SOLEDAD M. CAGAMPANG, petitioners,


WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioners-inintervention,
vs.
FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE PRESIDENT, AND JOSE G. DE
VENECIA, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, FRANKLIN M. DRILON, IN HIS CAPACITY AS PRESIDENT OF THE
SENATE OF THE REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR., FELIX
WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, KIM BERNARDO-LOKIN,

MARCELINO LIBANAN, EMMYLOU TALIO-SANTOS, DOUGLAS CAGAS, SHERWIN


GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR ERICE,
ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO MARAON, JR., CECILIA CARREONJALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU YUMUL-HERMIDA, JOSE
CARLOS LACSON, MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR, WILHELMINO
SY-ALVARADO, CLAUDE BAUTISTA, DEL DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO
BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO BIAZON, LEOVIGILDO
BANAAG, ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO
TEVES, AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS
NEPOMUCENO, CONRADO ESTRELLA III, ELIAS BULUT, JR., JURDIN ROMUALDO, JUAN
PABLO BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL DUAVIT, JOSEPH
DURANO, JESLI LAPUS, CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES, DIDAGEN
DILANGALEN, ABRAHAM MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO-CUSTODIO,
ALETA SUAREZ, RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT REMULLA,
ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, BENASING MACARAMBON, JR.,
JOSEFINA JOSON, MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO ZAMORA,
ANGELO MONTILLA, ROSELLER BARINAGA, JESNAR FALCON, REYLINA NICOLAS,
RODOLFO ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA. CECILIA PAPA, NAPOLEON C.
REYES, ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P. NAZARENO, IN HIS CAPACITY
AS SECRETARY GENERAL OF THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR, MELVIN MATIBAG, RAMON
MIQUIBAS, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO SARMIENTO,
EDGARDO NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR., JAIME
BOAQUINA, LITA A. AQUINO, MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR., EL DELLE ARCE, WILLIE
RIVERO, DANTE DIAZ, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY SENERIS,
ANNA CLARISSA LOYOLA, SALVACION LOYOLA, RAINIER QUIROLGICO, JOSEPH
LEANDRO LOYOLA, ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA, JULITO U.
SOON, VIRGILIO LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX VILLAESTER,
AND EDILBERTO GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-inintervention,
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON. SPEAKER JOSE C. DE
VENECIA, JR., THE SENATE, REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T. REYES, petitioners,
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE OF REPRESENTATIVES, HON.
SENATE PRESIDENT FRANKLIN M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003

x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M. GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR
PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES, THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.

ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A MEMBER OF THE INTEGRATED BAR
OF THE PHILIPPINES, MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS CAPACITY AS
A TAXPAYER AND MEMBER OF THE ENGINEERING PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE 83 HONORABLE MEMBERS OF
THE HOUSE LED BY HON. REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.

10

THE HOUSE OF REPRESENTA-TIVES, THROUGH THE SPEAKER OR ACTING SPEAKER OR


PRESIDING OFFICER, SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA, THE SENATE OF THE
PHILIPPINES THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER, AND THE SENATE OF THE
PHILIPPINES, THROUGH THE SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C. PADERANGA, DANILO V.
ORTIZ, GLORIA C. ESTENZO-RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R. DIVINAGRACIA, KAREN B.
CAPARROS-ARQUILLANO, SYLVA G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE PHILIPPINES, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE VENECIA, THE SENATE OF THE
PHILIPPINES, SENATE PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES FELIX
FUENTEBELLA AND GILBERTO TEODORO, BY THEMSELVES AND AS REPRESENTATIVES
OF THE GROUP OF MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED AND FILED
THE IMPEACHMENT COMPLAINT AGAINST SUPREME COURT CHIEF JUSTICE HILARIO G.
DAVIDE, JR. respondents.
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE HONORABLE SPEAKER OF THE
HOUSE OF REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT TEODORO, IN REPRESENTATION OF
THE 86 SIGNATORIES OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF JUSTICE

HILARIO G. DAVIDE, JR. AND THE HOUSE OF REPRESENTATIVES, CONGRESS OF THE


PHILIPPINES, REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEA, petitioners,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER JOSE G. DE VENECIA, AND THE
SENATE OF THE PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT AGAINST CHIEF JUSTICE HILARIO
G. DAVIDE, JR., ATTY. DIOSCORO U. VALLEJOS, JR., petitioner.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER OR PRESIDING OFFICER,
HON. JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G. TEODORO, JR.,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE SENATE OF THE PHILIPPINES,
THROUGH SENATE PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY CHAPTER, MANUEL M.
MONZON, PRESIDING OF IBP, CEBU PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL
BOARD MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF LAW, UNIVERSITY OF
CEBU, YOUNG LAWYERS ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY ATTY.
MANUEL LEGASPI, CONFEDERATION OF ACCREDITED MEDIATORS OF THE PHILIPPINES,
INC. [CAMP, INC], REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE VELASQUEZ, FEDERACION
INTERNACIONAL DE ABOGADAS [FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS
G. CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND INDUSTRY AND CEBU LADY
LAWYERS ASSOCIATION, INC. [CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE AND INTEGRATED BAR OF
THE PHILIPPINES, CEBU CHAPTER, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP. JOSE G. DE VENECIA, AS

11

HOUSE SPEAKER AND THE SENATE, REPRESENTED BY SENATOR FRANKLIN DRILON, AS


SENATE PRESIDENT,respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how passionate and seemingly
irreconcilable it may appear to be, over the determination by the independent branches of government of the
nature, scope and extent of their respective constitutional powers where the Constitution itself provides for the
means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart antipodal courses and not a few of our
countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that the present controversy subject of the instant
petitions whether the filing of the second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
with the House of Representatives falls within the one year bar provided in the Constitution, and whether the
resolution thereof is a political question has resulted in a political crisis. Perhaps even more truth to the view
that it was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient to address all the issues which
this controversy spawns that this Court unequivocally pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is ever mindful of the essential
truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of
government by no means prescribes for absolute autonomy in the discharge by each of that part of the
governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the
Constitution to temper the official acts of each of these three branches must be given effect without destroying
their indispensable co-equality.
Taken together, these two fundamental doctrines of republican government, intended as they are to insure that
governmental power is wielded only for the good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws
are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being
of the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI

SECTION 2. The President, the Vice-President, the Members of the Supreme Court, the Members
of the Constitutional Commissions, and the Ombudsman may be removed from office, on
impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft
and corruption, other high crimes, or betrayal of public trust. All other public officers and
employees may be removed from office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive power to initiate all cases
of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary either to affirm a
favorable resolution with the Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all
the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within
a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of impeachment. When sitting
for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines
is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall
be convicted without the concurrence of two-thirds of all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively carry out the purpose
of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the 12th Congress of the House of
Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House
Impeachment Rules) on November 28, 2001, superseding the previous House Impeachment Rules1 approved
by the 11th Congress. The relevant distinctions between these two Congresses' House Impeachment Rules are
shown in the following tabulation:

Accountability of Public Officers


SECTION 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency,
act with patriotism and justice, and lead modest lives.

11TH CONGRESS RULES

12TH CONGRESS NEW RULES

12

On July 22, 2002, the House of Representatives adopted a Resolution,2 sponsored by Representative Felix
William D. Fuentebella, which directed the Committee on Justice "to conduct an investigation, in aid of
legislation, on the manner of disbursements and expenditures by the Chief Justice of the Supreme Court of the
Judiciary Development Fund (JDF)." 3

RULE II

RULE V

INITIATING IMPEACHMENT

BAR AGAINST INITIATION OF


IMPEACHMENT PROCEEDINGS AGAINST
THE SAME OFFICIAL

Section 2. Mode of Initiating Impeachment.


Impeachment shall be initiated only by a verified
complaint for impeachment filed by any Member of
the House of Representatives or by any citizen upon
a resolution of endorsement by any Member thereof
or by a verified complaint or resolution of
impeachment filed by at least one-third (1/3) of all
the Members of the House.

Section 16. Impeachment Proceedings Deemed


Initiated. In cases where a Member of the House
files a verified complaint of impeachment or a
citizen files a verified complaint that is endorsed
by a Member of the House through a resolution of
endorsement against an impeachable officer,
impeachment proceedings against such official are
deemed initiated on the day the Committee on
Justice finds that the verified complaint and/or
resolution against such official, as the case may
be, is sufficient in substance, or on the date the
House votes to overturn or affirm the finding of
the said Committee that the verified complaint
and/or resolution, as the case may be, is not
sufficient in substance.
In cases where a verified complaint or a resolution
of impeachment is filed or endorsed, as the case
may be, by at least one-third (1/3) of the Members
of the House, impeachment proceedings are
deemed initiated at the time of the filing of such
verified complaint or resolution of
impeachment with the Secretary General.

RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No impeachment
proceedings shall be initiated against the same
official more than once within the period of one (1)
year.

Section 17. Bar Against Initiation Of


Impeachment Proceedings. Within a period of
one (1) year from the date impeachment
proceedings are deemed initiated as provided in
Section 16 hereof, no impeachment proceedings,
as such, can be initiated against the same official.
(Italics in the original; emphasis and underscoring
supplied)

On June 2, 2003, former President Joseph E. Estrada filed an impeachment complaint4 (first impeachment
complaint) against Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of this Court for "culpable
violation of the Constitution, betrayal of the public trust and other high crimes." 6 The complaint was endorsed
by Representatives Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang Dilangalen,7 and was referred to
the House Committee on Justice on August 5, 20038 in accordance with Section 3(2) of Article XI of the
Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first impeachment complaint was
"sufficient in form,"9 but voted to dismiss the same on October 22, 2003 for being insufficient in
substance.10 To date, the Committee Report to this effect has not yet been sent to the House in plenary in
accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first complaint or on October 23, 2003, a
day after the House Committee on Justice voted to dismiss it, the second impeachment complaint 11 was filed
with the Secretary General of the House12 by Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac)
and Felix William B. Fuentebella (Third District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr.,
founded on the alleged results of the legislative inquiry initiated by above-mentioned House Resolution. This
second impeachment complaint was accompanied by a "Resolution of Endorsement/Impeachment" signed by
at least one-third (1/3) of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al., most of which petitions contend
that the filing of the second impeachment complaint is unconstitutional as it violates the provision of Section 5
of Article XI of the Constitution that "[n]o impeachment proceedings shall be initiated against the same official
more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he has a duty as a member of the
Integrated Bar of the Philippines to use all available legal remedies to stop an unconstitutional impeachment,
that the issues raised in his petition for Certiorari, Prohibition and Mandamus are of transcendental importance,
and that he "himself was a victim of the capricious and arbitrary changes in the Rules of Procedure in
Impeachment Proceedings introduced by the 12th Congress," 14 posits that his right to bring an impeachment
complaint against then Ombudsman Aniano Desierto had been violated due to the capricious and arbitrary
changes in the House Impeachment Rules adopted and approved on November 28, 2001 by the House of
Representatives and prays that (1) Rule V, Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be
declared unconstitutional; (2) this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of the Constitution, to return the
second impeachment complaint and/or strike it off the records of the House of Representatives, and to
promulgate rules which are consistent with the Constitution; and (3) this Court permanently enjoin respondent
House of Representatives from proceeding with the second impeachment complaint.

13

In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and taxpayers, alleging that the
issues of the case are of transcendental importance, pray, in their petition for Certiorari/Prohibition, the
issuance of a writ "perpetually" prohibiting respondent House of Representatives from filing any Articles of
Impeachment against the Chief Justice with the Senate; and for the issuance of a writ "perpetually" prohibiting
respondents Senate and Senate President Franklin Drilon from accepting any Articles of Impeachment against
the Chief Justice or, in the event that the Senate has accepted the same, from proceeding with the impeachment
trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad Cagampang, as citizens, taxpayers, lawyers
and members of the Integrated Bar of the Philippines, alleging that their petition for Prohibition involves
public interest as it involves the use of public funds necessary to conduct the impeachment trial on the second
impeachment complaint, pray for the issuance of a writ of prohibition enjoining Congress from conducting
further proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court has recognized that he has locus
standi to bring petitions of this nature in the cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for Injunction that the second impeachment complaint be
declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers and members of the legal
profession, pray in their petition for Prohibition for an order prohibiting respondent House of Representatives
from drafting, adopting, approving and transmitting to the Senate the second impeachment complaint, and
respondents De Venecia and Nazareno from transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and Deputy Speaker Raul M. Gonzalez,
alleging that, as members of the House of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their petition for Certiorari/Prohibition that the
second impeachment complaint and any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they have a right to be protected
against all forms of senseless spending of taxpayers' money and that they have an obligation to protect the
Supreme Court, the Chief Justice, and the integrity of the Judiciary, allege in their petition for Certiorari and
Prohibition that it is instituted as "a class suit" and pray that (1) the House Resolution endorsing the second
impeachment complaint as well as all issuances emanating therefrom be declared null and void; and (2) this
Court enjoin the Senate and the Senate President from taking cognizance of, hearing, trying and deciding the
second impeachment complaint, and issue a writ of prohibition commanding the Senate, its prosecutors and
agents to desist from conducting any proceedings or to act on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members are citizens and taxpayers, and its
co-petitioner Crispin T. Reyes, a citizen, taxpayer and a member of the Philippine Bar, both allege in their
petition, which does not state what its nature is, that the filing of the second impeachment complaint involves
paramount public interest and pray that Sections 16 and 17 of the House Impeachment Rules and the second
impeachment complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a member of the Philippine Bar
Association and of the Integrated Bar of the Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a
taxpayer, pray in their petition for the issuance of a Temporary Restraining Order and Permanent Injunction to
enjoin the House of Representatives from proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that it is mandated by the Code of
Professional Responsibility to uphold the Constitution, prays in its petition for Certiorari and Prohibition that
Sections 16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules be

declared unconstitutional and that the House of Representatives be permanently enjoined from proceeding with
the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his petition for Certiorari and Prohibition
that the House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et. al., in their petition for Prohibition
and Injunction which they claim is a class suit filed in behalf of all citizens, citing Oposa v. Factoran17 which
was filed in behalf of succeeding generations of Filipinos, pray for the issuance of a writ prohibiting
respondents House of Representatives and the Senate from conducting further proceedings on the second
impeachment complaint and that this Court declare as unconstitutional the second impeachment complaint and
the acts of respondent House of Representatives in interfering with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino, alleging that the issues in his
petition for Prohibition are of national and transcendental significance and that as an official of the Philippine
Judicial Academy, he has a direct and substantial interest in the unhampered operation of the Supreme Court
and its officials in discharging their duties in accordance with the Constitution, prays for the issuance of a writ
prohibiting the House of Representatives from transmitting the Articles of Impeachment to the Senate and the
Senate from receiving the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in his petition for Prohibition that
respondents Fuentebella and Teodoro at the time they filed the second impeachment complaint, were
"absolutely without any legal power to do so, as they acted without jurisdiction as far as the Articles of
Impeachment assail the alleged abuse of powers of the Chief Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L. Hofilea, alleging that as professors
of law they have an abiding interest in the subject matter of their petition for Certiorari and Prohibition as it
pertains to a constitutional issue "which they are trying to inculcate in the minds of their students," pray that
the House of Representatives be enjoined from endorsing and the Senate from trying the Articles of
Impeachment and that the second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging his locus standi, but alleging that
the second impeachment complaint is founded on the issue of whether or not the Judicial Development Fund
(JDF) was spent in accordance with law and that the House of Representatives does not have exclusive
jurisdiction in the examination and audit thereof, prays in his petition "To Declare Complaint Null and Void for
Lack of Cause of Action and Jurisdiction" that the second impeachment complaint be declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the issues raised in the filing of the
second impeachment complaint involve matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all proceedings arising therefrom be
declared null and void; (2) respondent House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited from accepting the Articles of
Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and taxpayers, pray in their petition
for Certiorari/Prohibition that (1) the second impeachment complaint as well as the resolution of endorsement
and impeachment by the respondent House of Representatives be declared null and void and (2) respondents
Senate and Senate President Franklin Drilon be prohibited from accepting any Articles of Impeachment against
the Chief Justice or, in the event that they have accepted the same, that they be prohibited from proceeding
with the impeachment trial.

14

Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263, the first three of the eighteen which
were filed before this Court,18 prayed for the issuance of a Temporary Restraining Order and/or preliminary
injunction to prevent the House of Representatives from transmitting the Articles of Impeachment arising from
the second impeachment complaint to the Senate. Petition bearing docket number G.R. No. 160261 likewise
prayed for the declaration of the November 28, 2001 House Impeachment Rules as null and void for being
unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295, which were filed on October 28,
2003, sought similar relief. In addition, petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration by the Chief Justice of the JDF)
infringes on the constitutional doctrine of separation of powers and is a direct violation of the constitutional
principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of Representatives, a motion was put forth that
the second impeachment complaint be formally transmitted to the Senate, but it was not carried because the
House of Representatives adjourned for lack of quorum,19 and as reflected above, to date, the Articles of
Impeachment have yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order and/or writ of preliminary
injunction which were filed on or before October 28, 2003, Justices Puno and Vitug offered to recuse
themselves, but the Court rejected their offer. Justice Panganiban inhibited himself, but the Court directed him
to participate.
Without necessarily giving the petitions due course, this Court in its Resolution of October 28, 2003, resolved
to (a) consolidate the petitions; (b) require respondent House of Representatives and the Senate, as well as the
Solicitor General, to comment on the petitions not later than 4:30 p.m. of November 3, 2003; (c) set the
petitions for oral arguments on November 5, 2003, at 10:00 a.m.; and (d) appointed distinguished legal experts
as amici curiae.20 In addition, this Court called on petitioners and respondents to maintain the status quo,
enjoining all the parties and others acting for and in their behalf to refrain from committing acts that would
render the petitions moot.

On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to Intervene" in G.R. Nos. 160261,
160262, 160263, 160277, 160292, and 160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress and this Court in a "constitutional
deadlock" and praying for the dismissal of all the petitions as the matter in question is not yet ripe for judicial
determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino Quadra filed in G.R. No. 160262 a
"Motion for Leave of Court to Intervene and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc. filed a
Motion for Intervention in G.R. No. 160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene" in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310.
The motions for intervention were granted and both Senator Pimentel's Comment and Attorneys Macalintal
and Quadra's Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and the arguments of petitioners,
intervenors Senator Pimentel and Attorney Makalintal, and Solicitor General Alfredo Benipayo on the
principal issues outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who can invoke it; on
what issues and at what time; and whether it should be exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);

Also on October 28, 2003, when respondent House of Representatives through Speaker Jose C. De Venecia, Jr.
and/or its co-respondents, by way of special appearance, submitted a Manifestation asserting that this Court
has no jurisdiction to hear, much less prohibit or enjoin the House of Representatives, which is an independent
and co-equal branch of government under the Constitution, from the performance of its constitutionally
mandated duty to initiate impeachment cases. On even date, Senator Aquilino Q. Pimentel, Jr., in his own
behalf, filed a Motion to Intervene (Ex Abudante Cautela)21 and Comment, praying that "the consolidated
petitions be dismissed for lack of jurisdiction of the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and jurisdiction of the Senate as the impeachment court to try
and decide impeachment cases, including the one where the Chief Justice is the respondent, be recognized and
upheld pursuant to the provisions of Article XI of the Constitution." 22
Acting on the other petitions which were subsequently filed, this Court resolved to (a) consolidate them with
the earlier consolidated petitions; (b) require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through Senate President Franklin M. Drilon, filed a
Manifestation stating that insofar as it is concerned, the petitions are plainly premature and have no basis in
law or in fact, adding that as of the time of the filing of the petitions, no justiciable issue was presented before
it since (1) its constitutional duty to constitute itself as an impeachment court commences only upon its receipt
of the Articles of Impeachment, which it had not, and (2) the principal issues raised by the petitions pertain
exclusively to the proceedings in the House of Representatives.

c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5) of Article
XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising from the instant petitions as well
as the myriad arguments and opinions presented for and against the grant of the reliefs prayed for, this Court
has sifted and determined them to be as follows: (1) the threshold and novel issue of whether or not the power
of judicial review extends to those arising from impeachment proceedings; (2) whether or not the essential prerequisites for the exercise of the power of judicial review have been fulfilled; and (3) the substantive issues yet
remaining. These matters shall now be discussed in seriatim.

15

Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of judicial review to determine the
validity of the second impeachment complaint.
This Court's power of judicial review is conferred on the judicial branch of the government in Section 1,
Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by Justice Jose P. Laurel in the
definitive 1936 case of Angara v. Electoral Commission23 after the effectivity of the 1935 Constitution whose
provisions, unlike the present Constitution, did not contain the present provision in Article VIII, Section 1, par.
2 on what judicial power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the integral or constituent
units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels, for then the
distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms. Certainly, the limitations and
restrictions embodied in our Constitution are real as they should be in any living constitution. In the
United States where no express constitutional grant is found in their constitution, the possession of
this moderating power of the courts, not to speak of its historical origin and development there,
has been set at rest by popular acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear implication from section 2
of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality
of the judiciary as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other departments; it does not
in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights

which that instrument secures and guarantees to them. This is in truth all that is involved
in what is termed "judicial supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual cases and controversies
to be exercised after full opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed through their
representatives in the executive and legislative departments of the government. 24(Italics in the
original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the proper allocation of powers" of
the different branches of government and "to direct the course of government along constitutional channels" is
inherent in all courts25 as a necessary consequence of the judicial power itself, which is "the power of the court
to settle actual controversies involving rights which are legally demandable and enforceable." 26
Thus, even in the United States where the power of judicial review is not explicitly conferred upon the courts
by its Constitution, such power has "been set at rest by popular acquiescence for a period of more than one and
a half centuries." To be sure, it was in the 1803 leading case of Marbury v. Madison27 that the power of judicial
review was first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of
the land, the constitution itself is first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States confirms and
strengthens the principle, supposed to be essential to all written constitutions, that a law
repugnant to the constitution is void; and that courts, as well as other departments, are bound
by that instrument.28(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in the 1935 Constitution, the power
of judicial review was exercised by our courts to invalidate constitutionally infirm acts. 29 And as pointed out
by noted political law professor and former Supreme Court Justice Vicente V. Mendoza, 30 the executive and
legislative branches of our government in fact effectively acknowledged this power of judicial review in
Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent with the Constitution, the former shall be
void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be valid only when they are not
contrary to the laws or the Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is indeed an integral component of the
delicate system of checks and balances which, together with the corollary principle of separation of powers,

16

forms the bedrock of our republican form of government and insures that its vast powers are utilized only for
the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of government. It obtains
not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its
own sphere. But it does not follow from the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other
departments in the exercise of its power to determine the law, and hence to declare executive
and legislative acts void if violative of the Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "x x x judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of powers among
the three great departments of government through the definition and maintenance of the boundaries of
authority and control between them."33 To him, "[j]udicial review is the chief, indeed the only, medium of
participation or instrument of intervention of the judiciary in that balancing operation." 34
To ensure the potency of the power of judicial review to curb grave abuse of discretion by "any branch or
instrumentalities of government," the afore-quoted Section 1, Article VIII of the Constitution engraves, for
the first time into its history, into block letter law the so-called "expanded certiorari jurisdiction" of this Court,
the nature of and rationale for which are mirrored in the following excerpt from the sponsorship speech of its
proponent, former Chief Justice Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It says:
The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and explain.
Judicial power includes the duty of courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part or instrumentality
of the government.
Fellow Members of this Commission, this is actually a product of our experience during
martial law. As a matter of fact, it has some antecedents in the past, but the role of the judiciary
during the deposed regime was marred considerably by the circumstance that in a number of
cases against the government, which then had no legal defense at all, the solicitor general set
up the defense of political questions and got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the operation and effect of martial law failed
because the government set up the defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon it." The Committee on the Judiciary

feels that this was not a proper solution of the questions involved. It did not merely request an
encroachment upon the rights of the people, but it, in effect, encouraged further violations
thereof during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies and offices of the
government as well as those of its officers. In other words, the judiciary is the final arbiter on
the question whether or not a branch of government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the courts cannot hereafter
evade the duty to settle matters of this nature, by claiming that such matters constitute a
political question.35 (Italics in the original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant petitions, this Court must necessarily turn to the
Constitution itself which employs the well-settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the Constitution must be given their ordinary
meaning except where technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique Fernando, declared:
We look to the language of the document itself in our search for its meaning. We do not of
course stop there, but that is where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective sought to be attained. They are to
be given theirordinary meaning except where technical terms are employed in which case the
significance thus attached to them prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as possible should be understood in the sense they
have in common use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these are the cases where the need for
construction is reduced to a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the Constitution should be interpreted in
accordance with the intent of its framers. And so did this Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain
the reason which induced the framers of the Constitution to enact the particular provision
and the purpose sought to be accomplished thereby, in order to construe the whole as to make
the words consonant to that reason and calculated to effect that purpose.39 (Emphasis and
underscoring supplied)

17

As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking through Madame Justice
Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental principle of
constitutional construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction is to ascertain
and thereafter assure the realization of the purpose of the framers and of the people in the adoption
of the Constitution. It may also be safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the framers.41 (Emphasis and underscoring
supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as a whole. Thus, in Chiongbian v.
De Leon,42 this Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have dedicated a provision of
our Constitution merely for the benefit of one person without considering that it could also
affect others. When they adopted subsection 2, they permitted, if not willed, that said
provision should function to the full extent of its substance and its terms, not by itself alone,
but in conjunction with all other provisions of that great document.43 (Emphasis and
underscoring supplied)

It is in the context of the foregoing backdrop of constitutional refinement and jurisprudential application of the
power of judicial review that respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the
novel argument that the Constitution has excluded impeachment proceedings from the coverage of judicial
review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al. that impeachment is a political action
which cannot assume a judicial character. Hence, any question, issue or incident arising at any stage of the
impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole power to try" impeachment
cases48 (1) entirely excludes the application of judicial review over it; and (2) necessarily includes the Senate's
power to determine constitutional questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment proceedings are outside the scope of judicial
review, respondents Speaker De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American
authorities, principally the majority opinion in the case of Nixon v. United States.50 Thus, they contend that the
exercise of judicial review over impeachment proceedings is inappropriate since it runs counter to the framers'
decision to allocate to different fora the powers to try impeachments and to try crimes; it disturbs the system of
checks and balances, under which impeachment is the only legislative check on the judiciary; and it would
create a lack of finality and difficulty in fashioning relief.51 Respondents likewise point to deliberations on the
US Constitution to show the intent to isolate judicial power of review in cases of impeachment.

Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court affirmed that:
It is a well-established rule in constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so
interpreted as to effectuate the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words
idle and nugatory.45(Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to other aids is available. In still the
same case of Civil Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large majority
who did not talk, much less of the mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to construe the constitution from
what appears upon its face." The proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers's understanding thereof.46 (Emphasis
and underscoring supplied)

Respondents' and intervenors' reliance upon American jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the Constitution, is a textually demonstrable
constitutional commitment of all issues pertaining to impeachment to the legislature, to the total exclusion of
the power of judicial review to check and restrain any grave abuse of the impeachment process. Nor can it
reasonably support the interpretation that it necessarily confers upon the Senate the inherently judicial power
to determine constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American Constitution, are of dubious application
for these are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n resolving
constitutional disputes, [this Court] should not be beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different constitutional settings and needs." 53 Indeed, although
the Philippine Constitution can trace its origins to that of the United States, their paths of development have
long since diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the Philippine Supreme Court and that of the U.S.
Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court
and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly
provided for in the Constitution, is not just a power but also a duty, and it was given an expanded
definition to include the power to correct any grave abuse of discretion on the part of any government branch
or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect
to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without limitation, 54 our Constitution,
though vesting in the House of Representatives the exclusive power to initiate impeachment cases, 55 provides
for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the
impeachment of one and the same official.

18

Respondents are also of the view that judicial review of impeachments undermines their finality and may also
lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people
expressed legislatively, recognizing full well the perils of judicial willfulness and pride." 56

x x x Even then, this power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass upon questions of wisdom, justice or
expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.68 (Italics in the original)

But did not the people also express their will when they instituted the above-mentioned safeguards in the
Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole
discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v.
Carr,57"judicially discoverable standards" for determining the validity of the exercise of such discretion,
through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by respondents in support of the argument
that the impeachment power is beyond the scope of judicial review, are not in point. These cases concern the
denial of petitions for writs of mandamus to compel the legislature to perform non-ministerial acts, and do not
concern the exercise of the power of judicial review.
There is indeed a plethora of cases in which this Court exercised the power of judicial review over
congressional action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within the power and
jurisdiction of the Court to inquire whether the Senate or its officials committed a violation of the Constitution
or grave abuse of discretion in the exercise of their functions and prerogatives. In Tanada v. Angara,61 in
seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that
the petition raises a justiciable controversy and that when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to
settle the dispute. In Bondoc v. Pineda,62 this Court declared null and void a resolution of the House of
Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the
House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the Commission on Appointments
was based on proportional representation of the political parties as provided in Section 18, Article VI of the
Constitution is subject to judicial review. In Daza v. Singson,64 it held that the act of the House of
Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review.
In Tanada v. Cuenco,65 it held that although under the Constitution, the legislative power is vested exclusively
in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of
Congress. In Angara v. Electoral Commission,66 it ruled that confirmation by the National Assembly of the
election of any member, irrespective of whether his election is contested, is not essential before such memberelect may discharge the duties and enjoy the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the exercise of judicial review over
impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be
interpreted as a whole and "one section is not to be allowed to defeat another." 67 Both are integral components
of the calibrated system of independence and interdependence that insures that no branch of government act
beyond the powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of judicial review, like almost all
powers conferred by the Constitution, is subject to several limitations, namely: (1) an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging the act must have "standing"
to challenge; he must have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the
earliest possible opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.

Standing
Locus standi or legal standing or has been defined as a personal and substantial interest in the case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being challenged.
The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the
court depends for illumination of difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that petitioners do not have standing
since only the Chief Justice has sustained and will sustain direct personal injury. Amicus curiae former Justice
Minister and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have standing since this Court had, in the
past, accorded standing to taxpayers, voters, concerned citizens, legislators in cases involving paramount
public interest70 and transcendental importance,71 and that procedural matters are subordinate to the need to
determine whether or not the other branches of the government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the discretion given to them.72 Amicus curiae Dean
Raul Pangalangan of the U.P. College of Law is of the same opinion, citing transcendental importance and the
well-entrenched rule exception that, when the real party in interest is unable to vindicate his rights by seeking
the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the
jurisdiction of this Court, the courts will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and the rule on standing, for the
former is a concept of civil procedure73 while the latter has constitutional underpinnings.74 In view of the
arguments set forth regarding standing, it behooves the Court to reiterate the ruling in Kilosbayan, Inc. v.
Morato75 to clarify what is meant by locus standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has been noted by authorities
thus: "It is important to note . . . that standing because of its constitutional and public policy
underpinnings, is very different from questions relating to whether a particular plaintiff is the real
party in interest or has capacity to sue. Although all three requirements are directed towards
ensuring that only certain parties can maintain an action, standing restrictions require a partial
consideration of the merits, as well as broader policy concerns relating to the proper role of the
judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases suits are brought not by
parties who have been personally injured by the operation of a law or by official action taken, but
by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged such a personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."

19

xxx
On the other hand, the question as to "real party in interest" is whether he is "the party who would
be benefited or injured by the judgment, or the 'party entitled to the avails of the suit.'" 76 (Citations
omitted)
While rights personal to the Chief Justice may have been injured by the alleged unconstitutional acts of the
House of Representatives, none of the petitioners before us asserts a violation of the personal rights of the
Chief Justice. On the contrary, they invariably invoke the vindication of their own rights as taxpayers;
members of Congress; citizens, individually or in a class suit; and members of the bar and of the legal
profession which were supposedly violated by the alleged unconstitutional acts of the House of
Representatives.
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific requirements have
been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute must be direct
and personal. He must be able to show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result of its enforcement, and not
merely that he suffers thereby in some indefinite way. It must appear that the person complaining has been or
is about to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected
to some burdens or penalties by reason of the statute or act complained of. 77 In fine, when the proceeding
involves the assertion of a public right,78 the mere fact that he is a citizen satisfies the requirement of personal
interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that public funds are illegally disbursed,
or that public money is being deflected to any improper purpose, or that there is a wastage of public funds
through the enforcement of an invalid or unconstitutional law.79 Before he can invoke the power of judicial
review, however, he must specifically prove that he has sufficient interest in preventing the illegal expenditure
of money raised by taxation and that he would sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has merely a general interest common to all members
of the public.80
At all events, courts are vested with discretion as to whether or not a taxpayer's suit should be
entertained.81 This Court opts to grant standing to most of the petitioners, given their allegation that any
impending transmittal to the Senate of the Articles of Impeachment and the ensuing trial of the Chief Justice
will necessarily involve the expenditure of public funds.
As for a legislator, he is allowed to sue to question the validity of any official action which he claims infringes
his prerogatives as a legislator.82 Indeed, a member of the House of Representatives has standing to maintain
inviolate the prerogatives, powers and privileges vested by the Constitution in his office.83
84

While an association has legal personality to represent its members, especially when it is composed of
substantial taxpayers and the outcome will affect their vital interests, 85 the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law and nothing
more, although undoubtedly true, does not suffice to clothe it with standing. Its interest is too general. It is
shared by other groups and the whole citizenry. However, a reading of the petitions shows that it has advanced
constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and weight
as precedents.86 It, therefore, behooves this Court to relax the rules on standing and to resolve the issues
presented by it.

In the same vein, when dealing with class suits filed in behalf of all citizens, persons intervening must be
sufficiently numerous to fully protect the interests of all concerned87 to enable the court to deal properly with
all interests involved in the suit,88 for a judgment in a class suit, whether favorable or unfavorable to the class,
is, under the res judicata principle, binding on all members of the class whether or not they were before the
court.89Where it clearly appears that not all interests can be sufficiently represented as shown by the divergent
issues raised in the numerous petitions before this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitionersadditionally allege standing as citizens and taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground of transcendental importance,
while Atty. Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the following instructive determinants
formulated by former Supreme Court Justice Florentino P. Feliciano are instructive: (1) the character of the
funds or other assets involved in the case; (2) the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or instrumentality of the government; and (3) the lack of
any other party with a more direct and specific interest in raising the questions being raised.90 Applying these
determinants, this Court is satisfied that the issues raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however, mean that the requirement that a party
should have an interest in the matter is totally eliminated. A party must, at the very least, still plead the
existence of such interest, it not being one of which courts can take judicial notice. In petitioner Vallejos' case,
he failed to allege any interest in the case. He does not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules of Court requires an intervenor to
possess a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other disposition of property in the
custody of the court or of an officer thereof. While intervention is not a matter of right, it may be permitted by
the courts when the applicant shows facts which satisfy the requirements of the law authorizing intervention. 92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case, they seek to join petitioners
Candelaria, et. al. in G.R. No. 160262. Since, save for one additional issue, they raise the same issues and the
same standing, and no objection on the part of petitioners Candelaria, et. al. has been interposed, this Court as
earlier stated, granted the Motion for Leave of Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et. al. sought to join petitioner
Francisco in G.R. No. 160261. Invoking their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives is successful," this Court found the
requisites for intervention had been complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295,
and 160310 were of transcendental importance, World War II Veterans Legionnaires of the Philippines, Inc.
filed a "Petition-in-Intervention with Leave to Intervene" to raise the additional issue of whether or not the
second impeachment complaint against the Chief Justice is valid and based on any of the grounds prescribed
by the Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc., et al. and World
War II Veterans Legionnaires of the Philippines, Inc. possess a legal interest in the matter in litigation the
respective motions to intervene were hereby granted.

20

Senator Aquilino Pimentel, on the other hand, sought to intervene for the limited purpose of making of record
and arguing a point of view that differs with Senate President Drilon's. He alleges that submitting to this
Court's jurisdiction as the Senate President does will undermine the independence of the Senate which will sit
as an impeachment court once the Articles of Impeachment are transmitted to it from the House of
Representatives. Clearly, Senator Pimentel possesses a legal interest in the matter in litigation, he being a
member of Congress against which the herein petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be denied for, while he asserts an interest
as a taxpayer, he failed to meet the standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax money is "being extracted and
spent in violation of specific constitutional protection against abuses of legislative power," or that
there is a misapplication of such funds by respondent COMELEC, or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that the act of petitioners will result
in illegal disbursement of public funds or in public money being deflected to any improper purpose.
Additionally, his mere interest as a member of the Bar does not suffice to clothe him with standing.

The dean's position does not persuade. First, the withdrawal by the Representatives of their signatures would
not, by itself, cure the House Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment complaint since it would only place it
under the ambit of Sections 3(2) and (3) of Article XI of the Constitution97 and, therefore, petitioners would
continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or both Houses of Congress before
coming to this Court is shown by the fact that, as previously discussed, neither the House of Representatives
nor the Senate is clothed with the power to rule with definitiveness on the issue of constitutionality, whether
concerning impeachment proceedings or otherwise, as said power is exclusively vested in the judiciary by the
earlier quoted Section I, Article VIII of the Constitution. Remedy cannot be sought from a body which is bereft
of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto Concepcion defined the term "political
question," viz:
[T]he term "political question" connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum, it refers to
"those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government." It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.99 (Italics in the original)

Ripeness and Prematurity


In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by then been accomplished or performed by either branch
before a court may come into the picture." 96 Only then may the courts pass on the validity of what was done, if
and when the latter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of the second impeachment
complaint against the Chief Justice in accordance with the House Impeachment Rules adopted by the 12th
Congress, the constitutionality of which is questioned. The questioned acts having been carried out, i.e., the
second impeachment complaint had been filed with the House of Representatives and the 2001 Rules have
already been already promulgated and enforced, the prerequisite that the alleged unconstitutional act should be
accomplished and performed before suit, as Tan v. Macapagal holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant petitions are premature. Amicus
curiaeformer Senate President Jovito R. Salonga opines that there may be no urgent need for this Court to
render a decision at this time, it being the final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law who suggests to this Court to take
judicial notice of on-going attempts to encourage signatories to the second impeachment complaint to
withdraw their signatures and opines that the House Impeachment Rules provide for an opportunity for
members to raise constitutional questions themselves when the Articles of Impeachment are presented on a
motion to transmit to the same to the Senate. The dean maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the issue of their constitutional infirmity by way of a
motion to dismiss.

Prior to the 1973 Constitution, without consistency and seemingly without any rhyme or reason, this Court
vacillated on its stance of taking cognizance of cases which involved political questions. In some cases, this
Court hid behind the cover of the political question doctrine and refused to exercise its power of judicial
review.100 In other cases, however, despite the seeming political nature of the therein issues involved, this Court
assumed jurisdiction whenever it found constitutionally imposed limits on powers or functions conferred upon
political bodies.101 Even in the landmark 1988 case of Javellana v. Executive Secretary102 which raised the issue
of whether the 1973 Constitution was ratified, hence, in force, this Court shunted the political question
doctrine and took cognizance thereof. Ratification by the people of a Constitution is a political question, it
being a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to refuse to take jurisdiction over
certain cases during the Marcos regime motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its application on issues involving political
questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the usual comment that the judiciary
is the weakest among the three major branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its decisions or commands except the
power of reason and appeal to conscience which, after all, reflects the will of God, and is the most powerful of
all other powers without exception. x x x And so, with the body's indulgence, I will proceed to read the
provisions drafted by the Committee on the Judiciary.
The first section starts with a sentence copied from former Constitutions. It says:

21

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

in the plebiscite. Thereupon, a motion was filed with the Supreme Court praying that the holding of
the referendum be suspended. When the motion was being heard before the Supreme Court, the
Minister of Justice delivered to the Court a proclamation of the President declaring that the new
Constitution was already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the Minister of Justice, I
proceeded to the session room where the case was being heard. I then informed the Court and the
parties the presidential proclamation declaring that the 1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare the presidential proclamation null and void. The main
defense put up by the government was that the issue was a political question and that the court had
no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January 10 to January 15, the vast majority
ratified the draft of the Constitution. Note that all members of the Supreme Court were residents of
Manila, but none of them had been notified of any referendum in their respective places of
residence, much less did they participate in the alleged referendum. None of them saw any
referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of the members of the
Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big difference between a
referendum and a plebiscite. But another group of justices upheld the defense that the issue
was a political question. Whereupon, they dismissed the case. This is not the only major case
in which the plea of "political question" was set up. There have been a number of other cases
in the past.
x x x The defense of the political question was rejected because the issue was clearly
justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it faced the following
questions: What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main function: to settle actual controversies
involving conflicts of rights which are demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judiciary party. In a decided case, a husband
complained that his wife was unwilling to perform her duties as a wife. The Court said: "We can
tell your wife what her duties as such are and that she is bound to comply with them, but we cannot
force her physically to discharge her main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them by actual compulsion would be
highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:

22

Judicial power includes the duty of courts to settle actual controversies involving rights which are
legally demandable or enforceable . . .

On another point, is it the intention of Section 1 to do away with the political question
doctrine?

The courts, therefore, cannot entertain, much less decide, hypothetical questions. In a presidential
system of government, the Supreme Court has, also another important function. The powers
of government are generally considered divided into three branches: the Legislative, the
Executive and the Judiciary. Each one is supreme within its own sphere and independent of
the others. Because of that supremacy power to determine whether a given law is valid or not
is vested in courts of justice.

MR. CONCEPCION. No.

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

FR. BERNAS. It is not.


MR. CONCEPCION. No, because whenever there is an abuse of discretion, amounting to a
lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do away with the
political question doctrine.
MR. CONCEPCION. No, certainly not.

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

When this provision was originally drafted, it sought to define what is judicial power. But the
Gentleman will notice it says, "judicial power includes" and the reason being that the
definition that we might make may not cover all possible areas.

I have made these extended remarks to the end that the Commissioners may have an initial food for
thought on the subject of the judiciary.103 (Italics in the original; emphasis supplied)

FR. BERNAS. So, this is not an attempt to solve the problems arising from the political
question doctrine.

During the deliberations of the Constitutional Commission, Chief Justice Concepcion further clarified the
concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial power is not
vested in the Supreme Court alone but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.

MR. CONCEPCION. It definitely does not eliminate the fact that truly political questions are
beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional Commission, it is clear that judicial
power is not only a power; it is also a duty, a duty which cannot be abdicated by the mere specter of this
creature called the political question doctrine. Chief Justice Concepcion hastened to clarify, however, that
Section 1, Article VIII was not intended to do away with "truly political questions." From this clarification it is
gathered that there are two species of political questions: (1) "truly political questions" and (2) those which
"are not truly political questions."

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


MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify political
questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases but where there is
a question as to whether the government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not a political question.
Therefore, the court has the duty to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the Supreme Court
according to the new numerical need for votes.

Truly political questions are thus beyond judicial review, the reason for respect of the doctrine of separation of
powers to be maintained. On the other hand, by virtue of Section 1, Article VIII of the Constitution, courts can
review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP College of Law, this Court has in fact
in a number of cases taken jurisdiction over questions which are not truly political following the effectivity of
the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left
to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro Padilla, this Court declared:

23

The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that
obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases."108 (Emphasis and
underscoring supplied)

II. Whether the second impeachment complaint was filed in accordance with Section 3(4), Article
XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into the Judicial
Development Fund is an unconstitutional infringement of the constitutionally mandated fiscal
autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment adopted by the 12th
Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution.

And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The
reason is that, even if we were to assume that the issue presented before us was political in nature,
we would still not be precluded from resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question.110 x x x (Emphasis and underscoring
supplied.)

V. Whether the second impeachment complaint is barred under Section 3(5) of Article XI of the
Constitution.
The first issue goes into the merits of the second impeachment complaint over which this Court has
no jurisdiction. More importantly, any discussion of this issue would require this Court to make a
determination of what constitutes an impeachable offense. Such a determination is a purely political
question which the Constitution has left to the sound discretion of the legislation. Such an intent is
clear from the deliberations of the Constitutional Commission. 113

Section 1, Article VIII, of the Court does not define what are justiciable political questions and non-justiciable
political questions, however. Identification of these two species of political questions may be problematic.
There has been no clear standard. The American case of Baker v. Carr111 attempts to provide some:
x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for non-judicial discretion; or
the impossibility of a court's undertaking independent resolution without expressing lack of the
respect due coordinate branches of government; or an unusual need for questioning adherence to a
political decision already made; or thepotentiality of embarrassment from multifarious
pronouncements by various departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually demonstrable constitutional
commitment of the issue to a coordinate political department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards are not separate and distinct
concepts but are interrelated to each in that the presence of one strengthens the conclusion that the others are
also present.
The problem in applying the foregoing standards is that the American concept of judicial review is radically
different from our current concept, for Section 1, Article VIII of the Constitution provides our courts with far
less discretion in determining whether they should pass upon a constitutional issue.
In our jurisdiction, the determination of a truly political question from a non-justiciable political question lies
in the answer to the question of whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such limits. This Court shall thus now apply this
standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint constitute valid impeachable
offenses under the Constitution.

Although Section 2 of Article XI of the Constitution enumerates six grounds for impeachment, two of these,
namely, other high crimes and betrayal of public trust, elude a precise definition. In fact, an examination of the
records of the 1986 Constitutional Commission shows that the framers could find no better way to
approximate the boundaries of betrayal of public trust and other high crimes than by alluding to both positive
and negative examples of both, without arriving at their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond
the scope of its judicial power under Section 1, Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the constitutionality of a governmental act
should be avoided whenever possible. Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a constitutional question and
decide a law to be unconstitutional or invalid, unless such question is raised by the parties and that
when it is raised,if the record also presents some other ground upon which the court may rest
its judgment, that course will be adopted and the constitutional question will be left for
consideration until a case arises in which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian Reform,117 where this Court invalidated
Sections 13 and 32 of Republic Act No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a constitutional question
only if it is shown that the essential requisites of a judicial inquiry into such a question are
first satisfied. Thus, there must be an actual case or controversy involving a conflict of legal rights
susceptible of judicial determination, the constitutional question must have been opportunely raised
by the proper party, and the resolution of the question is unavoidably necessary to the decision
of the case itself.118 [Emphasis supplied]

24

Succinctly put, courts will not touch the issue of constitutionality unless it is truly unavoidable and is the
very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the invalidity of the second impeachment
complaint, collectively raise several constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the remaining substantial issues should be
passed upon, this Court is guided by the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among other reasons, the second
impeachment complaint is invalid since it directly resulted from a Resolution 120 calling for a legislative inquiry
into the JDF, which Resolution and legislative inquiry petitioners claim to likewise be unconstitutional for
being: (a) a violation of the rules and jurisprudence on investigations in aid of legislation; (b) an open breach
of the doctrine of separation of powers; (c) a violation of the constitutionally mandated fiscal autonomy of the
judiciary; and (d) an assault on the independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the studied opinion of this Court that
the issue of the constitutionality of the said Resolution and resulting legislative inquiry is too far removed from
the issue of the validity of the second impeachment complaint. Moreover, the resolution of said issue would, in
the Court's opinion, require it to form a rule of constitutional law touching on the separate and distinct matter
of legislative inquiries in general, which would thus be broader than is required by the facts of these
consolidated cases. This opinion is further strengthened by the fact that said petitioners have raised other
grounds in support of their petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative inquiries has already been enunciated
by this Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of Congress to conduct
inquiries in aid of legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of legislation is not, therefore
absolute or unlimited. Its exercise is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation must be "in aid of legislation in
accordance with its duly published rules of procedure" and that "the rights of persons appearing in
or affected by such inquiries shall be respected." It follows then that the right rights of persons
under the Bill of Rights must be respected, including the right to due process and the right not be
compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino Quadra, while joining the original
petition of petitioners Candelaria, et. al., introduce the new argument that since the second impeachment
complaint was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix William Fuentebella,
the same does not fall under the provisions of Section 3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is filed by at least onethird of all the Members of the House, the same shall constitute the Articles of Impeachment, and
trial by the Senate shall forthwith proceed.

They assert that while at least 81 members of the House of Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the requisites for the application of the afore-mentioned
section in that the "verified complaint or resolution of impeachment" was not filed "by at least one-third of all
the Members of the House." With the exception of Representatives Teodoro and Fuentebella, the signatories to
said Resolution are alleged to have verified the same merely as a "Resolution of Endorsement." Intervenors
point to the "Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the abovementioned
Complaint of Representatives Gilberto Teodoro and Felix William B. Fuentebella x x x" 124
Intervenors Macalintal and Quadra further claim that what the Constitution requires in order for said second
impeachment complaint to automatically become the Articles of Impeachment and for trial in the Senate to
begin "forthwith," is that the verified complaint be "filed," not merely endorsed, by at least one-third of the
Members of the House of Representatives. Not having complied with this requirement, they concede that the
second impeachment complaint should have been calendared and referred to the House Committee on Justice
under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined that for Section 3 (4), Article XI of
the Constitution to apply, there should be 76 or more representatives who signed and verified the second
impeachment complaint as complainants, signed and verified the signatories to a resolution of impeachment.
Justice Maambong likewise asserted that the Resolution of Endorsement/Impeachment signed by at least onethird of the members of the House of Representatives as endorsers is not the resolution of impeachment
contemplated by the Constitution, such resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra, does indeed limit the scope of the
constitutional issues to the provisions on impeachment, more compelling considerations militate against its
adoption as the lis mota or crux of the present controversy. Chief among this is the fact that only Attorneys
Macalintal and Quadra, intervenors in G.R. No. 160262, have raised this issue as a ground for invalidating the
second impeachment complaint. Thus, to adopt this additional ground as the basis for deciding the instant
consolidated petitions would not only render for naught the efforts of the original petitioners in G.R. No.
160262, but the efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for the determination of the instant
cases is made easier by the fact that said intervenors Macalintal and Quadra have joined in the petition of
Candelaria, et. al., adopting the latter's arguments and issues as their own. Consequently, they are not unduly
prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as they are, constitute the very lis
mota of the instant controversy: (1) whether Sections 15 and 16 of Rule V of the House Impeachment Rules
adopted by the 12th Congress are unconstitutional for violating the provisions of Section 3, Article XI of the
Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section
3(5) of Article XI of the Constitution.

25

Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground that the Senate, sitting as an
impeachment court, has the sole power to try and decide all cases of impeachment. Again, this Court reiterates
that the power of judicial review includes the power of review over justiciable issues in impeachment
proceedings.
On the other hand, respondents Speaker De Venecia et. al. argue that "[t]here is a moral compulsion for the
Court to not assume jurisdiction over the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the Legislature has a moral compulsion not to
pass laws with penalty clauses because Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option before this Court. Adjudication may
not be declined, because this Court is not legally disqualified. Nor can jurisdiction be renounced as there is no
other tribunal to which the controversy may be referred."126 Otherwise, this Court would be shirking from its
duty vested under Art. VIII, Sec. 1(2) of the Constitution. More than being clothed with authority thus, this
Court is duty-bound to take cognizance of the instant petitions. 127 In the august words of amicus curiae Father
Bernas, "jurisdiction is not just a power; it is a solemn duty which may not be renounced. To renounce it, even
if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of government cannot inhibit itself
and must rule upon the challenge because no other office has the authority to do so. 128 On the occasion that this
Court had been an interested party to the controversy before it, it has acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as always, with detachment and
fairness."129 After all, "by [his] appointment to the office, the public has laid on [a member of the judiciary]
their confidence that [he] is mentally and morally fit to pass upon the merits of their varied contentions. For
this reason, they expect [him] to be fearless in [his] pursuit to render justice, to be unafraid to displease any
person, interest or power and to be equipped with a moral fiber strong enough to resist the temptations lurking
in [his] office."130
The duty to exercise the power of adjudication regardless of interest had already been settled in the case
ofAbbas v. Senate Electoral Tribunal.131 In that case, the petitioners filed with the respondent Senate Electoral
Tribunal a Motion for Disqualification or Inhibition of the Senators-Members thereof from the hearing and
resolution of SET Case No. 002-87 on the ground that all of them were interested parties to said case as
respondents therein. This would have reduced the Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any Senator sitting in the
Tribunal by any of his other colleagues in the Senate without inviting the same objections to the
substitute's competence, the proposed mass disqualification, if sanctioned and ordered, would leave
the Tribunal no alternative but to abandon a duty that no other court or body can perform, but which
it cannot lawfully discharge if shorn of the participation of its entire membership of Senators.
To our mind, this is the overriding consideration that the Tribunal be not prevented from
discharging a duty which it alone has the power to perform, the performance of which is in the
highest public interest as evidenced by its being expressly imposed by no less than the fundamental
law.
It is aptly noted in the first of the questioned Resolutions that the framers of the Constitution could
not have been unaware of the possibility of an election contest that would involve all Senators
elect, six of whom would inevitably have to sit in judgment thereon. Indeed, such possibility might
surface again in the wake of the 1992 elections when once more, but for the last time, all 24 seats in

the Senate will be at stake. Yet the Constitution provides no scheme or mode for settling such
unusual situations or for the substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must simply place their trust and hopes
of vindication in the fairness and sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the Senate Electoral Tribunal
may inhibit or disqualify himself from sitting in judgment on any case before said Tribunal.
Every Member of the Tribunal may, as his conscience dictates, refrain from participating in the
resolution of a case where he sincerely feels that his personal interests or biases would stand in the
way of an objective and impartial judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as such, absent its entire
membership of Senators and that no amendment of its Rules can confer on the three JusticesMembers alone the power of valid adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing
short ofpro tanto depriving the Court itself of its jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of his court, as is the case with the
Justices of this Court, the deprivation of his or their judicial power is equivalent to the deprivation
of the judicial power of the court itself. It affects the very heart of judicial independence. The
proposed mass disqualification, if sanctioned and ordered, would leave the Court no alternative but
to abandon a duty which it cannot lawfully discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it exercises its power of judicial
review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the "seven pillars" of limitations of the
power of judicial review, enunciated by US Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary
proceeding, declining because to decide such questions 'is legitimate only in the last resort, and as a
necessity in the determination of real, earnest and vital controversy between individuals. It never
was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to
the courts an inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to decide questions of a constitutional nature unless
absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise
facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly presented by the record,
if there is also present some other ground upon which the case may be disposed of. This rule has
found most varied application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory construction or general law, the
Court will decide only the latter. Appeals from the highest court of a state challenging its decision

26

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

Respondents Speaker de Venecia, et. al. raise another argument for judicial restraint the possibility that
"judicial review of impeachments might also lead to embarrassing conflicts between the Congress and the
[J]udiciary." They stress the need to avoid the appearance of impropriety or conflicts of interest in judicial
hearings, and the scenario that it would be confusing and humiliating and risk serious political instability at
home and abroad if the judiciary countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure of this Court to enforce its
Resolution against Congress would result in the diminution of its judicial authority and erode public
confidence and faith in the judiciary.
Such an argument, however, is specious, to say the least. As correctly stated by the Solicitor General, the
possibility of the occurrence of a constitutional crisis is not a reason for this Court to refrain from upholding
the Constitution in all impeachment cases. Justices cannot abandon their constitutional duties just because their
action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.

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

x x x Frequently, the fight over a controversial legislative or executive act is not regarded as settled
until the Supreme Court has passed upon the constitutionality of the act involved, the judgment has
not only juridical effects but also political consequences. Those political consequences may follow
even where the Court fails to grant the petitioner's prayer to nullify an act for lack of the necessary
number of votes. Frequently, failure to act explicitly, one way or the other, itself constitutes a
decision for the respondent and validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and "in the end there were not enough
votes either to grant the petitions, or to sustain respondent's claims," 140 the pre-existing constitutional order was
disrupted which paved the way for the establishment of the martial law regime.

2. that rules of constitutional law shall be formulated only as required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the operation of the statute
5. that the parties are not in estoppel

Such an argument by respondents and intervenor also presumes that the coordinate branches of the government
would behave in a lawless manner and not do their duty under the law to uphold the Constitution and obey the
laws of the land. Yet there is no reason to believe that any of the branches of government will behave in a
precipitate manner and risk social upheaval, violence, chaos and anarchy by encouraging disrespect for the
fundamental law of the land.
Substituting the word public officers for judges, this Court is well guided by the doctrine in People v.
Veneracion, to wit:141

6. that the Court upholds the presumption of constitutionality.


As stated previously, parallel guidelines have been adopted by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement
3. the question of constitutionality must be raised at the earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of the case.136

Obedience to the rule of law forms the bedrock of our system of justice. If [public officers], under
the guise of religious or political beliefs were allowed to roam unrestricted beyond boundaries
within which they are required by law to exercise the duties of their office, then law becomes
meaningless. A government of laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system, [public officers] are guided by the
Rule of Law, and ought "to protect and enforce it without fear or favor," resist encroachments by
governments, political parties, or even the interference of their own personal beliefs. 142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues that Sections 16 and 17 of Rule V
of the House Impeachment Rules do not violate Section 3 (5) of Article XI of our present Constitution,
contending that the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is the House of

27

Representatives, as a collective body, which has the exclusive power to initiate all cases of impeachment; that
initiate could not possibly mean "to file" because filing can, as Section 3 (2), Article XI of the Constitution
provides, only be accomplished in 3 ways, to wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a resolution of endorsement by any member; or (3)
by at least 1/3 of all the members of the House. Respondent House of Representatives concludes that the one
year bar prohibiting the initiation of impeachment proceedings against the same officials could not have been
violated as the impeachment complaint against Chief Justice Davide and seven Associate Justices had not been
initiated as the House of Representatives, acting as the collective body, has yet to act on it.
The resolution of this issue thus hinges on the interpretation of the term "initiate." Resort to statutory
construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution, Commissioner Florenz Regalado, who
eventually became an Associate Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong during the Constitutional Commission
proceedings, which he (Commissioner Regalado) as amicus curiae affirmed during the oral arguments on the
instant petitions held on November 5, 2003 at which he added that the act of "initiating" included the act of
taking initial action on the complaint, dissipates any doubt that indeed the word "initiate" as it twice appears in
Article XI (3) and (5) of the Constitution means to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries do, to begin, to commence, or set
going. As Webster's Third New International Dictionary of the English Language concisely puts it, it means "to
perform or facilitate the first action," which jibes with Justice Regalado's position, and that of Father Bernas,
who elucidated during the oral arguments of the instant petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single act. It is a comlexus of acts consisting of a
beginning, a middle and an end. The end is the transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative moments leading to the formulation of the articles
of impeachment. The beginning or the initiation is the filing of the complaint and its referral to the
Committee on Justice.
Finally, it should be noted that the House Rule relied upon by Representatives Cojuangco and
Fuentebella says that impeachment is "deemed initiated" when the Justice Committee votes in
favor of impeachment or when the House reverses a contrary vote of the Committee. Note that the
Rule does not say "impeachment proceedings" are initiated but rather are "deemed initiated." The
language is recognition that initiation happened earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking into the intent of the law.
Fortunately, the intent of the framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and the substantive
provisions on impeachment, I understand there have been many proposals and, I think, these would
need some time for Committee action.
However, I would just like to indicate that I submitted to the Committee a resolution on
impeachment proceedings, copies of which have been furnished the Members of this body. This is
borne out of my experience as a member of the Committee on Justice, Human Rights and Good
Government which took charge of the last impeachment resolution filed before the First Batasang
Pambansa. For the information of the Committee, the resolution covers several steps in the
impeachment proceedings starting with initiation, action of the Speaker committee action,

calendaring of report, voting on the report, transmittal referral to the Senate, trial and
judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval
of the amendment submitted by Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The
procedure, as I have pointed out earlier, was that the initiation starts with the filing of the
complaint. And what is actually done on the floor is that the committee resolution containing
the Articles of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the Committee on Style, it appears that
the initiation starts on the floor. If we only have time, I could cite examples in the case of the
impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary
submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it
was the body who approved the resolution. It is not the body which initiates it. It only approves
or disapproves the resolution. So, on that score, probably the Committee on Style could help in
rearranging these words because we have to be very technical about this. I have been bringing with
me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me.
The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the
Committee has already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3
(3). My reconsideration will not at all affect the substance, but it is only in keeping with the exact
formulation of the Rules of the House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to any of this provision, that on page 2,
Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment
proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH
THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by"
with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of
the House shall be necessary either to affirm a resolution WITH THE ARTICLES of Impeachment
OF the Committee or to override its contrary resolution. The vote of each Member shall be
recorded."
I already mentioned earlier yesterday that the initiation, as far as the House of Representatives
of the United States is concerned, really starts from the filing of the verified complaint and every
resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the
words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a
verified compliant of one-third of all the Members of the House. I will mention again, Madam
President, that my amendment will not vary the substance in any way. It is only in keeping with the
uniform procedure of the House of Representatives of the United States Congress. Thank you,
Madam President.143 (Italics in the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and accepted by the Committee on the
Accountability of Public Officers.144

28

It is thus clear that the framers intended "initiation" to start with the filing of the complaint. In his amicus
curiaebrief, Commissioner Maambong explained that "the obvious reason in deleting the phrase "to initiate
impeachment proceedings" as contained in the text of the provision of Section 3 (3) was to settle and make
it understood once and for all that the initiation of impeachment proceedings starts with the filing of the
complaint, and the vote of one-third of the House in a resolution of impeachment does not initiate the
impeachment proceedings which was already initiated by the filing of a verified complaint under Section
3, paragraph (2), Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as is Father Bernas, who was also a
member of the 1986 Constitutional Commission, that the word "initiate" as used in Article XI, Section 3(5)
means to file, both adding, however, that the filing must be accompanied by an action to set the complaint
moving.
During the oral arguments before this Court, Father Bernas clarified that the word "initiate," appearing in the
constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power to initiate all cases of
impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official more than once within
a period of one year, (Emphasis supplied)

proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary meaning. Thus when a proposal
reached the floor proposing that "A vote of at least one-third of all the Members of the House shall be
necessary toinitiate impeachment proceedings," this was met by a proposal to delete the line on the ground
that the vote of the House does not initiate impeachment proceeding but rather the filing of a complaint
does.146 Thus the line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment proceeding shall be initiated against
the same official more than once within a period of one year," it means that no second verified complaint may
be accepted and referred to the Committee on Justice for action. By his explanation, this interpretation is
founded on the common understanding of the meaning of "to initiate" which means to begin. He reminds that
the Constitution is ratified by the people, both ordinary and sophisticated, as they understand it; and that
ordinary people read ordinary meaning into ordinary words and not abstruse meaning, they ratify words as
they understand it and not as sophisticated lawyers confuse it.
To the argument that only the House of Representatives as a body can initiate impeachment proceedings
because Section 3 (1) says "The House of Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the principle of reddendo singula
singulisby equating "impeachment cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment
complaint coupled with Congress' taking initial action of said complaint.

refers to two objects, "impeachment case" and "impeachment proceeding."


Father Bernas explains that in these two provisions, the common verb is "to initiate." The object in the first
sentence is "impeachment case." The object in the second sentence is "impeachment proceeding." Following
the principle of reddendo singuala sinuilis, the term "cases" must be distinguished from the term
"proceedings." An impeachment case is the legal controversy that must be decided by the Senate. Abovequoted first provision provides that the House, by a vote of one-third of all its members, can bring a case to the
Senate. It is in that sense that the House has "exclusive power" to initiate all cases of impeachment. No other
body can do it. However, before a decision is made to initiate a case in the Senate, a "proceeding" must be
followed to arrive at a conclusion. A proceeding must be "initiated." To initiate, which comes from the Latin
word initium, means to begin. On the other hand, proceeding is a progressive noun. It has a beginning, a
middle, and an end. It takes place not in the Senate but in the House and consists of several steps: (1) there is
the filing of a verified complaint either by a Member of the House of Representatives or by a private citizen
endorsed by a Member of the House of the Representatives; (2) there is the processing of this complaint by the
proper Committee which may either reject the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must be forwarded to the House for further
processing; and (4) there is the processing of the same complaint by the House of Representatives which either
affirms a favorable resolution of the Committee or overrides a contrary resolution by a vote of one-third of all
the members. If at least one third of all the Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point that the House "initiates an impeachment case." It is at
this point that an impeachable public official is successfully impeached. That is, he or she is successfully
charged with an impeachment "case" before the Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment proceeding" initiated when the House deliberates on
the resolution passed on to it by the Committee, because something prior to that has already been done. The
action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the

Having concluded that the initiation takes place by the act of filing and referral or endorsement of the
impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the
members of the House of Representatives with the Secretary General of the House, the meaning of Section 3
(5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment
complaint may not be filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed
initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or
resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the
Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the
filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or
a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene
Section 3 (5) of Article XI since the rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could not use contemporaneous
construction as an aid in the interpretation of Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this
Court stated that "their personal opinions (referring to Justices who were delegates to the Constitution
Convention) on the matter at issue expressed during this Court's our deliberations stand on a different footing
from the properly recorded utterances of debates and proceedings." Further citing said case, he states that this
Court likened the former members of the Constitutional Convention to actors who are so absorbed in their
emotional roles that intelligent spectators may know more about the real meaning because of the latter's
balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions. There are at present only two
members of this Court who participated in the 1986 Constitutional Commission Chief Justice Davide and

29

Justice Adolf Azcuna. Chief Justice Davide has not taken part in these proceedings for obvious reasons.
Moreover, this Court has not simply relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of Article XI, it is clear and
unequivocal that it and only it has the power to make and interpret its rules governing impeachment. Its
argument is premised on the assumption that Congress has absolute power to promulgate its rules. This
assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its rules on impeachment to
effectively carry out the purpose of this section." Clearly, its power to promulgate its rules on impeachment is
limited by the phrase "to effectively carry out the purpose of this section." Hence, these rules cannot
contravene the very purpose of the Constitution which said rules were intended to effectively carry out.
Moreover, Section 3 of Article XI clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the House of
Representatives or by any citizen upon a resolution of endorsement by any Member thereof, which
shall be included in the Order of Business within ten session days, and referred to the proper
Committee within three session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty session days from such
referral, together with the corresponding resolution. The resolution shall be calendared for
consideration by the House within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be necessary to either affirm a
favorable resolution with the Articles of Impeachment of the Committee, or override its contrary
resolution. The vote of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at least one-third of all
the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the
Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official more than once within
a period of one year.
It is basic that all rules must not contravene the Constitution which is the fundamental law. If as alleged
Congress had absolute rule making power, then it would by necessary implication have the power to alter or
amend the meaning of the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within the province of either House of Congress to interpret
its rules and that it was the best judge of what constituted "disorderly behavior" of its members. However,
in Paceta v. Secretary of the Commission on Appointments,150 Justice (later Chief Justice) Enrique Fernando,
speaking for this Court and quoting Justice Brandeis in United States v. Smith,151 declared that where the
construction to be given to a rule affects persons other than members of the Legislature, the question becomes
judicial in nature. InArroyo v. De Venecia,152 quoting United States v. Ballin, Joseph & Co.,153 Justice Vicente
Mendoza, speaking for this Court, held that while the Constitution empowers each house to determine its rules
of proceedings, it may not by its rules ignore constitutional restraints or violate fundamental rights, and further
that there should be a reasonable relation between the mode or method of proceeding established by the rule
and the result which is sought to be attained. It is only within these limitations that all matters of method are
open to the determination of the Legislature. In the same case of Arroyo v. De Venecia, Justice Reynato S.

Puno, in his Concurring and Dissenting Opinion, was even more emphatic as he stressed that in the Philippine
setting there is even more reason for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are non-justiciable.
Nor do I agree that we will trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States, the principle of separation of power is
no longer an impregnable impediment against the interposition of judicial power on cases involving
breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a window to view the issues
before the Court. It is in Ballin where the US Supreme Court first defined the boundaries of the
power of the judiciary to review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may determine the rules of its
proceedings." It appears that in pursuance of this authority the House had, prior to that day, passed
this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the names of members
sufficient to make a quorum in the hall of the House who do not vote shall be noted by the clerk
and recorded in the journal, and reported to the Speaker with the names of the members voting, and
be counted and announced in determining the presence of a quorum to do business. (House Journal,
230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question, therefore, is as to
the validity of this rule, and not what methods the Speaker may of his own motion resort to for
determining the presence of a quorum, nor what matters the Speaker or clerk may of their own
volition place upon the journal. Neither do the advantages or disadvantages, the wisdom or folly, of
such a rule present any matters for judicial consideration. With the courts the question is only one of
power. The Constitution empowers each house to determine its rules of proceedings. It may not
by its rules ignore constitutional restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceedings established by the rule and the
result which is sought to be attained. But within these limitations all matters of method are open to
the determination of the House, and it is no impeachment of the rule to say that some other way
would be better, more accurate, or even more just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a length of time. The power to make rules is not
one which once exercised is exhausted. It is a continuous power, always subject to be exercised by
the House, and within the limitations suggested, absolute and beyond the challenge of any other
body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of congressional
rules, i.e, whether they are constitutional. Rule XV was examined by the Court and it was found
to satisfy the test: (1) that it did not ignore any constitutional restraint; (2) it did not violate any
fundamental right; and (3) its method had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its jurisdiction to be defeated by the mere
invocation of the principle of separation of powers.154
xxx

30

In the Philippine setting, there is a more compelling reason for courts to categorically reject
the political question defense when its interposition will cover up abuse of power. For section
1, Article VIII of our Constitution was intentionally cobbled to empower courts "x x x to
determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." This
power is new and was not granted to our courts in the 1935 and 1972 Constitutions. It was not also
xeroxed from the US Constitution or any foreign state constitution. The CONCOM granted
this enormous power to our courts in view of our experience under martial law where abusive
exercises of state power were shielded from judicial scrutiny by the misuse of the political
question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the judiciary vis--vis the Executive and the
Legislative departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a mere power which it
can decline to exercise. Precisely to deter this disinclination, the Constitution imposed it as a
duty of this Court to strike down any act of a branch or instrumentality of government or any of
its officials done with grave abuse of discretion amounting to lack or excess of
jurisdiction. Rightly or wrongly, the Constitution has elongated the checking powers of this Court
against the other branches of government despite their more democratic character, the President
and the legislators being elected by the people.156
xxx
The provision defining judicial power as including the 'duty of the courts of justice. . . to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government' constitutes the capstone
of the efforts of the Constitutional Commission to upgrade the powers of this court vis--vis the
other branches of government. This provision was dictated by our experience under martial law
which taught us that a stronger and more independent judiciary is needed to abort abuses in
government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of government committed with
grave abuse of discretion, the new Constitution transformed this Court from passivity to activism.
This transformation, dictated by our distinct experience as nation, is not merely evolutionary but
revolutionary.Under the 1935 and the 1973 Constitutions, this Court approached constitutional
violations by initially determining what it cannot do; under the 1987 Constitution, there is a shift
in stress this Court is mandated to approach constitutional violations not by finding out what it
should not do but what it must do. The Court must discharge this solemn duty by not resuscitating
a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this new constitutional
provision as the case at bar once more calls us to define the parameters of our power to review
violations of the rules of the House. We will not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power or if we wield it with timidity. To
be sure, it is this exceeding timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former Senator Salonga that this novel provision
stretching the latitude of judicial power is distinctly Filipino and its interpretation should not be

depreciated by undue reliance on inapplicable foreign jurisprudence. In resolving the case at bar,
the lessons of our own history should provide us the light and not the experience of
foreigners.157 (Italics in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant petitions. Here, the third parties alleging
the violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158 as basis for arguing that this Court
may not decide on the constitutionality of Sections 16 and 17 of the House Impeachment Rules. As already
observed, the U.S. Federal Constitution simply provides that "the House of Representatives shall have the sole
power of impeachment." It adds nothing more. It gives no clue whatsoever as to how this "sole power" is to be
exercised. No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually
demonstrable constitutional commitment of a constitutional power to the House of Representatives. This
reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since
our Constitution, as earlier enumerated, furnishes several provisions articulating how that "exclusive power" is
to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment Rules which state that
impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that
the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient
in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives
of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House thus clearly
contravene Section 3 (5) of Article XI as they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral
to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not
be filed against the same official within a one year period following Article XI, Section 3(5) of the
Constitution.
In fine, considering that the first impeachment complaint, was filed by former President Estrada against Chief
Justice Hilario G. Davide, Jr., along with seven associate justices of this Court, on June 2, 2003 and referred to
the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by
Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October
23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the
same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a phenomenon that takes the center
stage of our individual and collective consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the controversy over the Davide
impeachment. For many of us, the past two weeks have proven to be an exasperating, mentally and
emotionally exhausting experience. Both sides have fought bitterly a dialectical struggle to articulate what they
respectively believe to be the correct position or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the Chief Justice, took to the streets armed with their
familiar slogans and chants to air their voice on the matter. Various sectors of society - from the business,
retired military, to the academe and denominations of faith offered suggestions for a return to a state of

31

normalcy in the official relations of the governmental branches affected to obviate any perceived resulting
instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment had been constituted, this Court
was specifically asked, told, urged and argued to take no action of any kind and form with respect to the
prosecution by the House of Representatives of the impeachment complaint against the subject respondent
public official. When the present petitions were knocking so to speak at the doorsteps of this Court, the same
clamor for non-interference was made through what are now the arguments of "lack of jurisdiction," "nonjusticiability," and "judicial self-restraint" aimed at halting the Court from any move that may have a bearing
on the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the question of the constitutionality of
initiating the impeachment complaint against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite conditions for its exercise of its
constitutionally vested power and duty of judicial review over an issue whose resolution precisely called for
the construction or interpretation of a provision of the fundamental law of the land. What lies in here is an
issue of a genuine constitutional material which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers under our system of government. Face-to-face
thus with a matter or problem that squarely falls under the Court's jurisdiction, no other course of action can be
had but for it to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the process of impeachment has
effectively set up a regime of judicial supremacy, is patently without basis in fact and in law.

respect for and obedience to its commands. Perhaps, there is no other government branch or instrumentality
that is most zealous in protecting that principle of legal equality other than the Supreme Court which has
discerned its real meaning and ramifications through its application to numerous cases especially of the highprofile kind in the annals of jurisprudence. The Chief Justice is not above the law and neither is any other
member of this Court. But just because he is the Chief Justice does not imply that he gets to have less in law
than anybody else. The law is solicitous of every individual's rights irrespective of his station in life.
The Filipino nation and its democratic institutions have no doubt been put to test once again by this
impeachment case against Chief Justice Hilario Davide. Accordingly, this Court has resorted to no other than
the Constitution in search for a solution to what many feared would ripen to a crisis in government. But though
it is indeed immensely a blessing for this Court to have found answers in our bedrock of legal principles, it is
equally important that it went through this crucible of a democratic process, if only to discover that it can
resolve differences without the use of force and aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which
were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the
second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the
House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the
Constitution.
SO ORDERED.

This Court in the present petitions subjected to judicial scrutiny and resolved on the merits only the main issue
of whether the impeachment proceedings initiated against the Chief Justice transgressed the constitutionally
imposed one-year time bar rule. Beyond this, it did not go about assuming jurisdiction where it had none, nor
indiscriminately turn justiciable issues out of decidedly political questions. Because it is not at all the business
of this Court to assert judicial dominance over the other two great branches of the government. Rather, the
raison d'etre of the judiciary is to complement the discharge by the executive and legislative of their own
powers to bring about ultimately the beneficent effects of having founded and ordered our society upon the
rule of law.
It is suggested that by our taking cognizance of the issue of constitutionality of the impeachment proceedings
against the Chief Justice, the members of this Court have actually closed ranks to protect a brethren. That the
members' interests in ruling on said issue is as much at stake as is that of the Chief Justice. Nothing could be
farther from the truth.
The institution that is the Supreme Court together with all other courts has long held and been entrusted with
the judicial power to resolve conflicting legal rights regardless of the personalities involved in the suits or
actions. This Court has dispensed justice over the course of time, unaffected by whomsoever stood to benefit
or suffer therefrom, unfraid by whatever imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted to wield judicial power in these
petitions just because it is the highest ranking magistrate who is involved when it is an incontrovertible fact
that the fundamental issue is not him but the validity of a government branch's official act as tested by the
limits set by the Constitution? Of course, there are rules on the inhibition of any member of the judiciary from
taking part in a case in specified instances. But to disqualify this entire institution now from the suit at bar is to
regard the Supreme Court as likely incapable of impartiality when one of its members is a party to a case,
which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept in any legal system which recognizes
equality of all men before the law as essential to the law's moral authority and that of its agents to secure

MUTUC VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila

32

EN BANC
G.R. No. L-32717 November 26, 1970
AMELITO R. MUTUC, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

This Court, after deliberation and taking into account the need for urgency, the election being barely a week
away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition, setting
forth the absence of statutory authority on the part of respondent to impose such a ban in the light of the
doctrine ofejusdem generis as well as the principle that the construction placed on the statute by respondent
Commission on Elections would raise serious doubts about its validity, considering the infringement of the
right of free speech of petitioner. Its concluding portion was worded thus: "Accordingly, as prayed for,
respondent Commission on Elections is permanently restrained and prohibited from enforcing or implementing
or demanding compliance with its aforesaid order banning the use of political jingles by candidates. This
resolution is immediately executory." 4

Amelito R. Mutuc in his own behalf.


Romulo C. Felizmena for respondent.

FERNANDO, J.:
The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the
Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of
respondent Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not in
vain. Nor could it be considering the conceded absence of any express power granted to respondent by the
Constitutional Convention Act to so require and the bar to any such implication arising from any provision
found therein, if deference be paid to the principle that a statute is to be construed consistently with the
fundamental law, which accords the utmost priority to freedom of expression, much more so when utilized for
electoral purposes. On November 3, 1970, the very same day the case was orally argued, five days after its
filing, with the election barely a week away, we issued a minute resolution granting the writ of prohibition
prayed for. This opinion is intended to explain more fully our decision.
In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a
resident of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional Convention,
alleged that respondent Commission on Elections, by a telegram sent to him five days previously, informed
him that his certificate of candidacy was given due course but prohibited him from using jingles in his mobile
units equipped with sound systems and loud speakers, an order which, according to him, is "violative of [his]
constitutional right ... to freedom of speech." 1 There being no plain, speedy and adequate remedy, according to
petitioner, he would seek a writ of prohibition, at the same time praying for a preliminary injunction. On the
very next day, this Court adopted a resolution requiring respondent Commission on Elections to file an answer
not later than November 2, 1970, at the same time setting the case for hearing for Tuesday November 3, 1970.
No preliminary injunction was issued. There was no denial in the answer filed by respondent on November 2,
1970, of the factual allegations set forth in the petition, but the justification for the prohibition was premised
on a provision of the Constitutional Convention Act, 2which made it unlawful for candidates "to purchase,
produce, request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of
whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes,
and the like, whether of domestic or foreign origin." 3It was its contention that the jingle proposed to be used
by petitioner is the recorded or taped voice of a singer and therefore a tangible propaganda material, under the
above statute subject to confiscation. It prayed that the petition be denied for lack of merit. The case was
argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C. Felizmena
arguing in behalf of respondent.

1. As made clear in our resolution of November 3, 1970, the question before us was one of power. Respondent
Commission on Elections was called upon to justify such a prohibition imposed on petitioner. To repeat, no
such authority was granted by the Constitutional Convention Act. It did contend, however, that one of its
provisions referred to above makes unlawful the distribution of electoral propaganda gadgets, mention being
made of pens, lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches,
and cigarettes, and concluding with the words "and the like." 5 For respondent Commission, the last three
words sufficed to justify such an order. We view the matter differently. What was done cannot merit our
approval under the well-known principle of ejusdem generis, the general words following any enumeration
being applicable only to things of the same kind or class as those specifically referred to. 6 It is quite apparent
that what was contemplated in the Act was the distribution of gadgets of the kind referred to as a means of
inducement to obtain a favorable vote for the candidate responsible for its distribution.
The more serious objection, however, to the ruling of respondent Commission was its failure to manifest fealty
to a cardinal principle of construction that a statute should be interpreted to assure its being in consonance
with, rather than repugnant to, any constitutional command or prescription. 7 Thus, certain Administrative Code
provisions were given a "construction which should be more in harmony with the tenets of the fundamental
law." 8 The desirability of removing in that fashion the taint of constitutional infirmity from legislative
enactments has always commended itself. The judiciary may even strain the ordinary meaning of words to
avert any collision between what a statute provides and what the Constitution requires. The objective is to
reach an interpretation rendering it free from constitutional defects. To paraphrase Justice Cardozo, if at all
possible, the conclusion reached must avoid not only that it is unconstitutional, but also grave doubts upon that
score. 9
2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal
precept. The view advanced by him that if the above provision of the Constitutional Convention Act were to
lend itself to the view that the use of the taped jingle could be prohibited, then the challenge of
unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits an
abridgment of free speech or a free press. It has been our constant holding that this preferred freedom calls all
the more for the utmost respect when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage. What respondent Commission did, in effect, was to impose
censorship on petitioner, an evil against which this constitutional right is directed. Nor could respondent
Commission justify its action by the assertion that petitioner, if he would not resort to taped jingle, would be
free, either by himself or through others, to use his mobile loudspeakers. Precisely, the constitutional guarantee
is not to be emasculated by confining it to a speaker having his say, but not perpetuating what is uttered by him
through tape or other mechanical contrivances. If this Court were to sustain respondent Commission, then the
effect would hardly be distinguishable from a previous restraint. That cannot be validly done. It would negate
indirectly what the Constitution in express terms assures. 10

33

3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the
validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate
of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the
functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it
imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on
its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws
cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding
cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power
of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication
is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental
measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law.

ALIH ET AL VS CASTRO
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

To be more specific, the competence entrusted to respondent Commission was aptly summed up by the present
Chief Justice thus: "Lastly, as the branch of the executive department although independent of the President
to which the Constitution has given the 'exclusive charge' of the 'enforcement and administration of all laws
relative to the conduct of elections,' the power of decision of the Commission is limited to purely
'administrative questions.'" 11 It has been the constant holding of this Court, as it could not have been
otherwise, that respondent Commission cannot exercise any authority in conflict with or outside of the law, and
there is no higher law than the Constitution. 12 Our decisions which liberally construe its powers are precisely
inspired by the thought that only thus may its responsibility under the Constitution to insure free, orderly and
honest elections be adequately fulfilled. 13 There could be no justification then for lending approval to any
ruling or order issuing from respondent Commission, the effect of which would be to nullify so vital a
constitutional right as free speech. Petitioner's case, as was obvious from the time of its filing, stood on solid
footing.
WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is permanently
restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order
banning the use of political taped jingles. Without pronouncement as to costs.

G.R. No. L-69401 June 23, 1987


RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN,
MULSIDI WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI,
WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY
GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO, petitioners,
vs.
MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM
AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO
CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP
(AIRBORNE) AND INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR
ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE
MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS
SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE
PHILIPPINES, respondents.

CRUZ, J.:
On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home
defense forces raided the compound occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in
search of loose firearms, ammunition and other explosives. 1
The military operation was commonly known and dreaded as a "zona," which was not unlike the feared
practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting the
persons fingered by a hooded informer, and executing them outright (although the last part is not included in
the modern refinement).
The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No
one was hurt as presumably the purpose was merely to warn the intruders and deter them from entering.

34

Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough. The soldiers
returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2

cuts the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex
parte Milligan: 10

The besieged compound surrendered the following morning, and sixteen male occupants were arrested, later to
be finger-printed, paraffin-tested and photographed over their objection. The military also inventoried and
confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of ammunition found in the
premises. 3

The Constitution is a law for rulers and 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. No doctrine, involving more pernicious consequences, was ever invented
by the wit of man than that any of its provisions can be suspended during any of the
great exigencies of government.

On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamus with
preliminary injunction and restraining order. Their purpose was to recover the articles seized from them, to
prevent these from being used as evidence against them, and to challenge their finger-printing, photographing
and paraffin-testing as violative of their right against self-incrimination. 4

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the nonobservance of the constitutional guaranty against unreasonable searches and seizures. There was no state of
hostilities in the area to justify, assuming it could, the repressions committed therein against the petitioners.

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to have
been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court, Zamboanga
City. 5After receiving the testimonial and documentary evidence of the parties, he submitted the report and
recommendations on which this opinion is based. 6

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take
them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the conclusion
that the petitioners were unquestionably guilty on the strength alone of unsubstantiated reports that they were
stockpiling weapons.

The petitioners demand the return of the arms and ammunition on the ground that they were taken without a
search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact admitted by
the respondents, "but with avoidance. 7

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the time of
the "zona," they were merely suspected of the mayor's slaying and had not in fact even been investigated for it.
As mere suspects, they were presumed innocent and not guilty as summarily pronounced by the military.

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question,
provided as follows:

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been any less
entitled to the protection of the Constitution, which covers both the innocent and the guilty. This is not to say,
of course, that the Constitution coddles criminals. What it does simply signify is that, lacking the shield of
innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved sentence, but
from arbitrary punishment. Every person is entitled to due process. It is no exaggeration that the basest
criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of
Rights, a majority of one.

Sec. 3. 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
not be violated, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible officer as may
be authorized by law, after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to be searched,
and the persons or things to be seized.
It was also declared in Article IV, Section 4(2) thatSec. 4(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
The respondents, while admitting the absence of the required such warrant, sought to justify their act on the
ground that they were acting under superior orders. 8 There was also the suggestion that the measure was
necessary because of the aggravation of the peace and order problem generated by the assassination of Mayor
Cesar Climaco. 9
Superior orders" cannot, of course, countermand the Constitution. The fact that the
petitioners were suspected of the Climaco killing did not excuse the constitutional short-

If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly
gave every appearance of doing so. This is truly regrettable for it was incumbent on them, especially during
those tense and tindery times, to encourage rather than undermine respect for the law, which it was their duty
to uphold.
In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the
military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply bypassed the civil courts, which had the authority to determine whether or not there was probable cause to search
the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on their own
unauthorized determination of the petitioner's guilt.
The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where
the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were
worried that the weapons inside the compound would be spirited away, they could have surrounded the
premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should

35

disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way
into the petitioner's premises with all the menace of a military invasion.
Conceding that the search was truly warrantless, might not the search and seizure be nonetheless considered
valid because it was incidental to a legal arrest? Surely not. If all the law enforcement authorities have to do is
force their way into any house and then pick up anything they see there on the ground that the occupants are
resisting arrest, then we might as well delete the Bill of Rights as a fussy redundancy.
When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open
and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered premises on the verbal
order of their superior officers. One cannot just force his way into any man's house on the illegal orders of a
superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because
of the ancient rule, revered in all free regimes, that a man's house is his castle.

All of us must exert efforts to make our country truly free and democratic, where every individual is entitled to
the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel for all, the innocent
as well as the guilty, including the basest of criminals.
WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL
and all the articles seized as a result thereof are inadmissible in evidence against the petitioners in any
proceedings. However, the said articles shall remain in custodia legis pending the outcome of the criminal
cases that have been or may later be filed against the petitioners.
SO ORDERED.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King
of England may not enter. All the forces of the Crown dare not cross the threshold of the
ruined tenement. 13
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be
committed, being committed, or just committed, what was that crime? There is no allegation in the record of
such a justification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the
officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case
of People v. Burgos. 14
If follows that as the search of the petitioners' premises was violative of the Constitution, all the firearms and
ammunition taken from the raided compound are inadmissible in evidence in any of the proceedings against
the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge Learned Hand observed, "Only in
case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will
the wrong be repressed. 16 Pending determination of the legality of such articles, however, they shall remain
in custodia legis, subject to such appropriate disposition as the corresponding courts may decide. 17

MANILA PRINCE HOTEL VS GSIS


EN BANC

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight
comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice Holmes
put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a witness
against himself is a prohibition of the use of physical or moral compulsion to extort communications from him,
not an exclusion of his body as evidence when it may be material."
The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past,
banished with the secret marshals and their covert license to kill without trial. We must be done with
lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be the first to
violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De
Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that there be a
return to the force and rule of law."

[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.
DECISION
BELLOSILLO, J.:

36

The Filipino 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 invoked 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 selfexecuting 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 x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x
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 Berhard 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 managers 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 x x x x[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) x x x x 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.

37

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 selfexecuting. 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 x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x
x x x Unless the contrary is clearly intended, the provisions of the Constitution should be considered selfexecuting, 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 selfexecuting, 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 capital, qualifications on the
setting up of other financial structures, et cetera (underscoring 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 non-self-executing but simply for purposes of style. But, certainly, the legislature is not precluded from
enacting 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.

38

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 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 nationbuilding[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 legislations
must be based. Res ipsa loquitur.
On the other hand, 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 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 our
rich natural resources but also to the cultural heritage of our 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 1930s. 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 for their final stand. Thereafter, in the 1950s and 1960s, 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 vicepresident 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 applicablesince 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.

39

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.

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?

xxxx
MR. NOLLEDO. Obviously.
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. 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. 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. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE STATE
SHALL GIVE 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] -

MR. MONSOD. We agree, Madam President.[39]


xxxx
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]

Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all economic concerns. It is better
known as the FILIPINO FIRST Policy x x x xThis provision was never found in previous Constitutions x x x x
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 counterproductive 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 and a qualified Filipino, the latter shall be chosen over the former.

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.

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]

40

The penchant to try to whittle away the mandate of the Constitution by arguing that the subject
provision is not self-executory 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 [i]f 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 astronger 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 petitioners 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

41

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.

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]

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 -

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 nations 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
if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if
the nations 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 aqualified, zealous and wellmeaning 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.

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 x x x x in connection with a temporary injunction issued by the Courts 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 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]

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 agreements and documents to effect the sale, to issue the
necessary clearances and to do such other acts and deeds as may be necessary for the purpose.
SO ORDERED.

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

HISTORY AND BACKGROUND


US VS BULL

42

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-5270

January 15, 1910

THE UNITED STATES, plaintiff-appellee,


vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as
amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court, where
under proper assignments of error he contends: (1) that the complaint does not state facts sufficient to confer
jurisdiction upon the court; (2) that under the evidence the trial court was without jurisdiction to hear and
determine the case; (3) that Act No. 55 as amended is in violation of certain provisions of the Constitution of
the United States, and void as applied to the facts of this case; and (4) that the evidence is insufficient to
support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then
and there master of a steam sailing vessel known as the steamship Standard, which vessel was then
and there engaged in carrying and transporting cattle, carabaos, and other animals from a foreign
port and city of Manila, Philippine Islands; that the said accused H. N. Bull, while master of said
vessel, as aforesaid, on or about the 2d day of December, 1908, did then and there willfully,
unlawfully, and wrongly carry, transport, and bring into the port and city of Manila, aboard said
vessel, from the port of Ampieng, Formosa, six hundred and seventy-seven (677) head of cattle and
carabaos, without providing suitable means for securing said animals while in transit, so as to avoid
cruelty and unnecessary suffering to the said animals, in this, to wit, that the said H. N. Bull,
master, as aforesaid, did then and there fail to provide stalls for said animals so in transit and
suitable means for trying and securing said animals in a proper manner, and did then and there
cause some of said animals to be tied by means of rings passed through their noses, and allow and
permit others to be transported loose in the hold and on the deck of said vessel without being tied or
secured in stalls, and all without bedding; that by reason of the aforesaid neglect and failure of the
accused to provide suitable means for securing said animals while so in transit, the noses of some
of said animals were cruelly torn, and many of said animals were tossed about upon the decks and
hold of said vessel, and cruelly wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep,
swine, or other animals, from one port in the Philippine Islands to another, or from any foreign port
to any port within the Philippine Islands, shall carry with them, upon the vessels carrying such
animals, sufficient forage and fresh water to provide for the suitable sustenance of such animals
during the ordinary period occupied by the vessel in passage from the port of shipment to the port
of debarkation, and shall cause such animals to be provided with adequate forage and fresh water at
least once in every twenty-four hours from the time that the animals are embarked to the time of
their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the
following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep,
swine, or other animals from one port in the Philippine Islands to another, or from any foreign port
to any port within the Philippine Islands, shall provide suitable means for securing such animals
while in transit so as to avoid all cruelty and unnecessary suffering to the animals, and suitable and
proper facilities for loading and unloading cattle or other animals upon or from vessels upon which
they are transported, without cruelty or unnecessary suffering. It is hereby made unlawful to load or
unload cattle upon or from vessels by swinging them over the side by means of ropes or chains
attached to the thorns.
Section 3 of Act No. 55 provides that
Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to
comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of
not less that one hundred dollars nor more that five hundred dollars, United States money, for each
offense. Prosecution under this Act may be instituted in any Court of First Instance or any provost
court organized in the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court was sitting at a port
where the cattle were disembarked, or that the offense was committed on board a vessel registered and licensed
under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any provost
court organized in the province or port in which such animals are disembarked, and there is nothing
inconsistent therewith in Act No. 136, which provides generally for the organization of the courts of the
Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts over certain offenses
committed on the high seas, or beyond the jurisdiction of any country, or within any of the waters of the
Philippine Islands on board a ship or water craft of any kind registered or licensed in the Philippine Islands, in
accordance with the laws thereof. (U.S.vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be exercised by the
Court of First Instance in any province into which such ship or water upon which the offense or crime was
committed shall come after the commission thereof. Had this offense been committed upon a ship carrying a
Philippine registry, there could have been no doubt of the Jurisdiction of the court, because it is expressly
conferred, and the Act is in accordance with well recognized and established public law. But the Standard was

43

a Norwegian vessel, and it is conceded that it was not registered or licensed in the Philippine Islands under the
laws thereof. We have then the question whether the court had jurisdiction over an offense of this character,
committed on board a foreign ship by the master thereof, when the neglect and omission which constitutes the
offense continued during the time the ship was within the territorial waters of the United States. No court of
the Philippine Islands had jurisdiction over an offenses or crime committed on the high seas or within the
territorial waters of any other country, but when she came within 3 miles of a line drawn from the headlines
which embrace the entrance to Manila Bay, she was within territorial waters, and a new set of principles
became applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.;
Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial
sovereign subject through the proper political agency. This offense was committed within territorial waters.
From the line which determines these waters the Standard must have traveled at least 25 miles before she came
to anchor. During that part of her voyage the violation of the statue continued, and as far as the jurisdiction of
the court is concerned, it is immaterial that the same conditions may have existed while the vessel was on the
high seas. The offense, assuming that it originated at the port of departure in Formosa, was a continuing one,
and every element necessary to constitute it existed during the voyage across the territorial waters. The
completed forbidden act was done within American waters, and the court therefore had jurisdiction over the
subject-matter of the offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the objection to the
jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the nationality of the
ship. Every. Every state has complete control and jurisdiction over its territorial waters. According to strict
legal right, even public vessels may not enter the ports of a friendly power without permission, but it is now
conceded that in the absence of a prohibition such ports are considered as open to the public ship of all friendly
powers. The exemption of such vessels from local jurisdiction while within such waters was not established
until within comparatively recent times. In 1794, Attorney-General Bradford, and in 1796 Attorney-General
Lee, rendered opinions to the effect that "the laws of nations invest the commander of a foreign ship of war
with no exemption from the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.)
This theory was also supported by Lord Stowell in an opinion given by him to the British Government as late
as 1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief
Justice Marshall said that the implied license under which such vessels enter a friendly port may reasonably be
construed as "containing exemption from the jurisdiction of the sovereign within whose territory she claims the
rights of hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which announced that
"the priviledge of exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an
absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between
nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan, Dip de
la Mer, 2. C.X.)
Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise but
little control over their actions, and offenses committed by their crew are justiciable by their own officers
acting under the laws to which they primarily owe allegiance. This limitation upon the general principle of
territorial sovereignty is based entirely upon comity and convenience, and finds its justification in the fact that
experience shows that such vessels are generally careful to respect local laws and regulation which are
essential to the health, order, and well-being of the port. But comity and convenience does not require the
extension of the same degree of exemption to merchant vessels. There are two well-defined theories as to
extent of the immunities ordinarily granted to them, According to the French theory and practice, matters
happening on board a merchant ship which do not concern the tranquillity of the port or persons foreign to the
crew, are justiciable only by the court of the country to which the vessel belongs. The French courts therefore

claim exclusive jurisdiction over crimes committed on board French merchant vessels in foreign ports by one
member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit
Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such
jurisdiction has never been admitted or claim by Great Britain as a right, although she has frequently conceded
it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who
consider exterritoriality as a fact instead of a theory have sought to restrict local jurisdiction, but Hall, who is
doubtless the leading English authority, says that
It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so
soon as the latter enter the ports of a foreign state they become subject to the local jurisdiction on
all points in which the interests of the country are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters a foreign port it is
subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of acquiescence or
through treaty arrangements consented to waive a portion of such jurisdiction. (15 Op. Attys. Gen., U. S., 178;
2 Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice
Marshall, in the case of the Exchange, said that
When merchant vessels enter for the purpose of trade, in would be obviously in convinient and
dangerous to society and would subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.
The Supreme Court of the United States has recently said that the merchant vessels of one country visiting the
ports of another for the purpose of trade, subject themselves to the laws which govern the ports they visit, so
long as they remain; and this as well in war as in peace, unless otherwise provided by treaty. (U.
S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of commerce
and navigation between Sweden and Norway and the United States, of July 4, 1827, which concedes to the
consul, vice-consuls, or consular agents of each country "The right to sit as judges and arbitrators in such
differences as may arise between the captains and crews of the vessels belonging to the nation whose interests
are committed to their charge, without the interference of the local authorities, unless the conduct of the crews
or of the captains should disturb the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p.
754.) This exception applies to controversies between the members of the ship's company, and particularly to
disputes regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The
order and tranquillity of the country are affected by many events which do not amount to a riot or general
public disturbance. Thus an assault by one member of the crew upon another, committed upon the ship, of
which the public may have no knowledge whatever, is not by this treaty withdrawn from the cognizance of the
local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the vessel in
the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the United States district
attorney was instructed by the Government to take the necessary steps to have the proceedings dismissed, and
the aid of the governor of Texas was invoked with the view to "guard against a repetition of similar
proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May 16, 1876;
Moore, Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount to a breach of

44

the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark Livingston was prosecuted in
the courts of Philadelphia County for an assault and battery committed on board the ship while lying in the
port of Philadelphia, it was held that there was nothing in the treaty which deprived the local courts of
jurisdiction. (Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through
diplomatic channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to
Count Lewenhaupt, the Swedish and Norwegian minister, as follows:
I have the honor to state that I have given the matter careful consideration in connection with the
views and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827
between the United States and Sweden and Norway. The stipulations contained in the last clause of
that article . . . are those under which it is contended by you that jurisdiction is conferred on the
consular officers, not only in regard to such differences of a civil nature growing out of the contract
of engagement of the seamen, but also as to disposing of controversies resulting from personal
violence involving offense for which the party may be held amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad interpretation.
The jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges
or abitratorsin such differences as may arise between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a disturbance of the order or
tranquillity of the country. When, however, a complaint is made to a local magistrate, either by the
captain or one or more of the crew of the vessel, involving the disturbance of the order or
tranquillity of the country, it is competent for such magistrate to take cognizance of the matter in
furtherance of the local laws, and under such circumstances in the United States it becomes a public
duty which the judge or magistrate is not at liberty voluntarily to forego. In all such cases it must
necessarily be left to the local judicial authorities whether the procedure shall take place in the
United States or in Sweden to determine if in fact there had been such disturbance of the local order
and tranquillity, and if the complaint is supported by such proof as results in the conviction of the
party accused, to visit upon the offenders such punishment as may be defined against the offense by
the municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a
merchant vessel by one member of the crew against another which amount to a disturbance of the order or
tranquillity of the country, and a fair and reasonable construction of the language requires un to hold that any
violation of criminal laws disturbs the order or traquillity of the country. The offense with which the appellant
is charged had nothing to so with any difference between the captain and the crew. It was a violation by the
master of the criminal law of the country into whose port he came. We thus find that neither by reason of the
nationality of the vessel, the place of the commission of the offense, or the prohibitions of any treaty or general
principle of public law, are the court of the Philippine Islands deprived of jurisdiction over the offense charged
in the information in this case.
It is further contended that the complaint is defective because it does not allege that the animals were
disembarked at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the court
sitting at that port. To hold with the appellant upon this issue would be to construe the language of the
complaint very strictly against the Government. The disembarkation of the animals is not necessary in order to
constitute the completed offense, and a reasonable construction of the language of the statute confers
jurisdiction upon the court sitting at the port into which the animals are bought. They are then within the
territorial jurisdiction of the court, and the mere fact of their disembarkation is immaterial so far as jurisdiction

is concerned. This might be different if the disembarkation of the animals constituted a constitutional element
in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly andwillfully failed to provide suitable means for securing said animals while in transit, so
as to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed
willfully includes the allegation that it was committed knowingly. As said in Woodhouse vs. Rio Grande R.R.
Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in connection with an act forbidden
by law, that the act must be done knowingly or intentionally; that, with knowledge, the will consented to,
designed, and directed the act." So in Wongvs. City of Astoria (13 Oregon, 538), it was said: "The first one is
that the complaint did not show, in the words of the ordinance, that the appellant 'knowingly' did the act
complained of. This point, I think, was fully answered by the respondent's counsel that the words 'willfully'
and 'knowingly' conveyed the same meaning. To 'willfully' do an act implies that it was done by design
done for a certain purpose; and I think that it would necessarily follow that it was 'knowingly' done." To the
same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the present case.
The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon the
assertion that "according to his experience, the system of carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the animals." It was conclusively proven that what was
done was done knowingly and intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to state the
act or omission complained of as constituting a crime or public offense in ordinary and concise language,
without repitition. It need not necessarily be in the words of the statute, but it must be in such form as to enable
a person of common understanding to know what is intended and the court to pronounce judgment according
to right. A complaint which complies with this requirement is good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to "provide suitable
means for securing such animals while in transit, so as to avoid all cruelty and unnecessary suffering to the
animals." The allegation of the complaint as it reads in English is that the defendant willfully, unlawfully, and
wrongfully carried the cattle "without providing suitable means for securing said animals while in transit, so as
to avoid cruelty and unnecessary suffering to the said animals in this . . . that by reason of the aforesaid neglect
and failure of the accused to provide suitable means for securing said animals were cruelty torn, and many of
said animals were tossed about upon the decks and hold of said vessels, and cruelty wounded, bruised, and
killed."
The appellant contends that the language of the Spanish text of the information does not charge him with
failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes" and "medios
adecuados." In view of the fact that the original complaint was prepared in English, and that the word
"suitable" is translatable by the words "adecuado," "suficiente," and "conveniente," according to the context
and circumstances, we determine this point against the appellant, particularly in view of the fact that the
objection was not made in the court below, and that the evidence clearly shows a failure to provide "suitable
means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto seems to
rest upon a fundamentally erroneous conception of the constitutional law of these Islands. The statute penalizes
acts and ommissions incidental to the transportation of live stock between foreign ports and ports of the

45

Philippine Islands, and had a similar statute regulating commerce with its ports been enacted by the legislature
of one of the States of the Union, it would doubtless have been in violation of Article I, section 3, of the
Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S., 1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by constitutional
principles different from those which apply to States of the Union. The importance of the question thus
presented requires a statement of the principles which govern those relations, and consideration of the nature
and extent of the legislative power of the Philippine Commission and the Legislature of the Philippines. After
much discussion and considerable diversity of opinion certain applicable constitutional doctrines are
established.
The Constitution confers upon the United States the express power to make war and treaties, and it has the
power possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired belongs to the
United States, and to guard against the possibility of the power of Congress to provide for its government
being questioned, the framers of the Constitution provided in express terms that Congress should have the
power "to dispose of and make all needful rules and regulations respecting territory and other property
belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition of the territory by the United
States, and until it is formally incorporated into the Union, the duty of providing a government therefor
devolves upon Congress. It may govern the territory by its direct acts, or it may create a local government, and
delegate thereto the ordinary powers required for local government. (Binns vs. U. S., 194 U. S., 486.) This has
been the usual procedure. Congress has provided such governments for territories which were within the
Union, and for newly acquired territory not yet incorporated therein. It has been customary to organize a
government with the ordinary separation of powers into executive, legislative, and judicial, and to prescribe in
an organic act certain general conditions in accordance with which the local government should act. The
organic act thus became the constitution of the government of the territory which had not been formally
incorporated into the Union, and the validity of legislation enacted by the local legislature was determined by
its conformity with the requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.) To
the legislative body of the local government Congress has delegated that portion of legislative power which in
its wisdom it deemed necessary for the government of the territory, reserving, however, the right to annul the
action of the local legislature and itself legislate directly for the territory. This power has been exercised during
the entire period of the history of the United States. The right of Congress to delegate such legislative power
can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370, 385.)
The Constitution of the United States does not by its own force operate within such territory, although the
liberality of Congress in legislating the Constitution into contiguous territory tended to create an impression
upon the minds of many people that it went there by its own force. (Downes vs. Bidwell, 182 U. S., 289.) In
legislating with reference to this territory, the power of Congress is limited only by those prohibitions of the
Constitution which go to the very root of its power to act at all, irrespective of time or place. In all other
respects it is plenary. (De Limavs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244;
Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)
This power has been exercised by Congress throughout the whole history of the United States, and legislation
founded on the theory was enacted long prior to the acquisition of the present Insular possessions. Section
1891 of the Revised Statutes of 1878 provides that "The Constitution and all laws of the United States which
are not locally inapplicable shall have the same force and effect within all the organized territories, and in
every Territory hereafter organized, as elsewhere within the United States." When Congress organized a civil

government for the Philippines, it expressly provided that this section of the Revised Statutes should not apply
to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as a result of the war
with Spain, the executive and legislative authorities have consistently proceeded in conformity with the
principles above state. The city of Manila was surrendered to the United States on August 13, 1898, and the
military commander was directed to hold the city, bay, and harbor, pending the conclusion of a peace which
should determine the control, disposition, and government of the Islands. The duty then devolved upon the
American authorities to preserve peace and protect person and property within the occupied territory. Provision
therefor was made by proper orders, and on August 26 General Merritt assumed the duties of military
governor. The treaty of peace was signed December 10, 1898. On the 22d of December, 1898, the President
announced that the destruction of the Spanish fleet and the surrender of the city had practically effected the
conquest of the Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the treaty
of peace the future control, disposition, and government of the Islands had been ceded to the United States.
During the periods of strict military occupation, before the treaty of peace was ratified, and the interim
thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the
military authority of the President as commander in chief. Long before Congress took any action, the President
organized a civil government which, however, had its legal justification, like the purely military government
which it gradually superseded, in the war power. The military power of the President embraced legislative,
executive personally, or through such military or civil agents as he chose to select. As stated by Secretary Root
in his report for 1901
The military power in exercise in a territory under military occupation includes executive,
legislative, and judicial authority. It not infrequently happens that in a single order of a military
commander can be found the exercise of all three of these different powers the exercise of the
legislative powers by provisions prescribing a rule of action; of judicial power by determination of
right; and the executive power by the enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as conditions would permit.
After full investigation, the organization of civil government was initiated by the appointment of a commission
to which civil authority was to be gradually transferred. On September 1, 1900, the authority to exercise,
subject to the approval of the President. "that part of the military power of the President in the Philippine
Islands which is legislative in its character" was transferred from the military government to the Commission,
to be exercised under such rules and regulations as should be prescribed by the Secretary of War, until such
time as complete civil government should be established, or congress otherwise provided. The legislative
power thus conferred upon the Commission was declared to include "the making of rules and orders having the
effect of law for the raising of revenue by taxes, customs duties, and imposts; the appropriation and
expenditure of public funds of the Islands; the establishment of an educational system to secure an efficient
civil service; the organization and establishment of courts; the organization and establishment of municipal and
departmental government, and all other matters of a civil nature which the military governor is now competent
to provide by rules or orders of a legislative character." This grant of legislative power to the Commission was
to be exercised in conformity with certain declared general principles, and subject to certain specific
restrictions for the protection of individual rights. The Commission were to bear in mind that the government
to be instituted was "not for our satisfaction or for the expression of our theoretical views, but for the
happiness, peace, and prosperity of the people of the Philippine Island, and the measures adopted should be
made to conforms to their customs, their habits, and even their prejudices, to the fullest extent consistent with
the accomplishment of the indispensable requisites of just and effective government." The specific restrictions
upon legislative power were found in the declarations that "no person shall be deprived of life, liberty, or

46

property without due process of law; that private property shall not be taken for public use without just
compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to
be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have
compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense;
that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment
inflicted; that no person shall be put twice in jeopardy for the same offense or be compelled in any criminal
case to be a witness against himself; that the right to be secure against unreasonable searches and seizures shall
not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment for crime; that
no bill of attainder or ex post facto law shall be passed; that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the Government for a
redress of grievances; that no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to the
Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial powers necessary
to govern the Philippine Islands . . . shall until otherwise provided by Congress be vested in such person and
persons, and shall be exercised in such manner, as the President of the United States shall direct, for the
establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the free
enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901, the authority, which had been
exercised previously by the military governor, was transferred to that official. The government thus created by
virtue of the authority of the President as Commander in Chief of the Army and Navy continued to administer
the affairs of the Islands under the direction of the President until by the Act of July 1, 1902, Congress
assumed control of the situation by the enactment of a law which, in connection with the instructions of April
7, 1900, constitutes the organic law of the Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the President had
erected. Congress adopted the system which was in operation, and approved the action of the President in
organizing the government. Substantially all the limitations which had been imposed on the legislative power
by the President's instructions were included in the law, Congress thus extending to the Islands by legislative
act nor the Constitution, but all its provisions for the protection of the rights and privileges of individuals
which were appropriate under the conditions. The action of the President in creating the Commission with
designated powers of government, in creating the office of the Governor-General and Vice-Governor-General,
and through the Commission establishing certain executive departments, was expressly approved and ratified.
Subsequently the action of the President in imposing a tariff before and after the ratification of the treaty of
peace was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1, 1902;
U.S. vs. Heinszen, 206 U.S., 370; Lincolnvs. U.S., 197 U.S., 419.) Until otherwise provided by law the Islands
were to continue to be governed "as thereby and herein provided." In the future the enacting clause of all
statutes should read "By authority of the United States" instead of "By the authority of the President." In the
course of time the legislative authority of the Commission in all parts of the Islands not inhabited by Moros or
non-Christian tribes was to be transferred to a legislature consisting of two houses the Philippine
Commission and the Philippine Assembly. The government of the Islands was thus assumed by Congress
under its power to govern newly acquired territory not incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and organization
somewhat resembles that of both. It stands outside of the constitutional relation which unites the States and
Territories into the Union. The authority for its creation and maintenance is derived from the Constitution of
the United States, which, however, operates on the President and Congress, and not directly on the Philippine

Government. It is the creation of the United States, acting through the President and Congress, both deriving
power from the same source, but from different parts thereof. For its powers and the limitations thereon the
Government of the Philippines looked to the orders of the President before Congress acted and the Acts of
Congress after it assumed control. Its organic laws are derived from the formally and legally expressed will of
the President and Congress, instead of the popular sovereign constituency which lies upon any subject relating
to the Philippines is primarily in Congress, and when it exercise such power its act is from the viewpoint of the
Philippines the legal equivalent of an amendment of a constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete governmental organism with
executive, legislative, and judicial departments exercising the functions commonly assigned to such
departments. The separation of powers is as complete as in most governments. In neither Federal nor State
governments is this separation such as is implied in the abstract statement of the doctrine. For instance, in the
Federal Government the Senate exercises executive powers, and the President to some extent controls
legislation through the veto power. In a State the veto power enables him to exercise much control over
legislation. The Governor-General, the head of the executive department in the Philippine Government, is a
member of the Philippine Commission, but as executive he has no veto power. The President and Congress
framed the government on the model with which Americans are familiar, and which has proven best adapted
for the advancement of the public interests and the protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general constitutional doctrined
which are inherent in the system. Hence, under it the Legislature must enact laws subject to the limitations of
the organic laws, as Congress must act under the national Constitution, and the States under the national and
state constitutions. The executive must execute such laws as are constitutionally enacted. The judiciary, as in
all governments operating under written constitutions, must determine the validity of legislative enactments, as
well as the legality of all private and official acts. In performing these functions it acts with the same
independence as the Federal and State judiciaries in the United States. Under no other constitutional theory
could there be that government of laws and not of men which is essential for the protection of rights under a
free and orderly government.
Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the courts
must consider the question of the validity of an act of the Philippine Commission or the Philippine Legislature,
as a State court considers an act of the State legislature. The Federal Government exercises such powers only
as are expressly or impliedly granted to it by the Constitution of the United States, while the States exercise all
powers which have not been granted to the central government. The former operates under grants, the latter
subject to restrictions. The validity of an Act of Congress depends upon whether the Constitution of the United
States contains a grant of express or implied authority to enact it. An act of a State legislature is valid unless
the Federal or State constitution expressly or impliedly prohibits its enaction. An Act of the legislative
authority of the Philippines Government which has not been expressly disapproved by Congress is valid unless
its subject-matter has been covered by congressional legislation, or its enactment forbidden by some provision
of the organic laws.
The legislative power of the Government of the Philippines is granted in general terms subject to specific
limitations. The general grant is not alone of power to legislate on certain subjects, but to exercise the
legislative power subject to the restrictions stated. It is true that specific authority is conferred upon the
Philippine Government relative to certain subjects of legislation, and that Congress has itself legislated upon
certain other subjects. These, however, should be viewed simply as enactments on matters wherein Congress

47

was fully informed and ready to act, and not as implying any restriction upon the local legislative authority in
other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the Government of the
Philippine tends strongly to confirm the view that for purposes of construction the Government of the
Philippines should be regarded as one of general instead of enumerated legislative powers. The situation was
unusual. The new government was to operate far from the source of its authority. To relieve Congress from the
necessity of legislating with reference to details, it was thought better to grant general legislative power to the
new government, subject to broad and easily understood prohibitions, and reserve to Congress the power to
annul its acts if they met with disapproval. It was therefore provided "that all laws passed by the Government
of the Philippine Islands shall be reported to Congress, which hereby reserves the power and authority to annul
the same." (Act of Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature
of the Philippines until approved by Congress, or when approved, expressly or by acquiescence, make them
the laws of Congress. They are valid acts of the Government of the Philippine Islands until annulled. (Miners
Bank vs. Iowa, 12 How. (U. S.), 1.)
In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been
expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United States
operated only upon the States of the Union. It has no application to the Government of the Philippine Islands.
The power to regulate foreign commerce is vested in Congress, and by virtue of its power to govern the
territory belonging to the United States, it may regulate foreign commerce with such territory. It may do this
directly, or indirectly through a legislative body created by it, to which its power in this respect if delegate.
Congress has by direct legislation determined the duties which shall be paid upon goods imported into the
Philippines, and it has expressly authorized the Government of the Philippines to provide for the needs of
commerce by improving harbors and navigable waters. A few other specific provisions relating to foreign
commerce may be found in the Acts of Congress, but its general regulation is left to the Government of the
Philippines, subject to the reserved power of Congress to annul such legislation as does not meet with its
approval. The express limitations upon the power of the Commission and Legislature to legislate do not affect
the authority with respect to the regulation of commerce with foreign countries. Act No. 55 was enacted before
Congress took over the control of the Islands, and this act was amended by Act No. 275 after the Spooner
amendment of March 2, 1901, was passed. The military government, and the civil government instituted by the
President, had the power, whether it be called legislative or administrative, to regulate commerce between
foreign nations and the ports of the territory. (Crossvs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin,
21 Wall. (U.S.), 73, 87.) This Act has remained in force since its enactment without annulment or other action
by Congress, and must be presumed to have met with its approval. We are therefore satisfied that the
Commission had, and the Legislature now has, full constitutional power to enact laws for the regulation of
commerce between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended
by Act No. 275, is valid.

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as
the Standard, for a period of six months or thereabouts prior to the 2d day of December, 1908, was
engaged in the transportation of cattle and carabaos from Chines and Japanese ports to and into the
city of Manila, Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid,
brought into the city of Manila, aboard said ship, a large number of cattle, which ship was
anchored, under the directions of the said defendant, behind the breakwaters in front of the city of
Manila, in Manila Bay, and within the jurisdiction of this court; and that fifteen of said cattle then
and there had broken legs and three others of said cattle were dead, having broken legs; and also
that said cattle were transported and carried upon said ship as aforesaid by the defendant, upon the
deck and in the hold of said ship, without suitable precaution and care for the transportation of said
animals, and to avoid danger and risk to their lives and security; and further that said cattle were so
transported abroad said ship by the defendant and brought into the said bay, and into the city of
Manila, without any provisions being made whatever upon said decks of said ship and in the hold
thereof to maintain said cattle in a suitable condition and position for such transportation.
That a suitable and practicable manner in which to transport cattle abroad steamship coming into
Manila Bay and unloading in the city of Manila is by way of individual stalls for such cattle,
providing partitions between the cattle and supports at the front sides, and rear thereof, and crosscleats upon the floor on which they stand and are transported, of that in case of storms, which are
common in this community at sea, such cattle may be able to stand without slipping and pitching
and falling, individually or collectively, and to avoid the production of panics and hazard to the
animals on account or cattle were transported in this case. Captain Summerville of the
steamship Taming, a very intelligent and experienced seaman, has testified, as a witness in behalf of
the Government, and stated positively that since the introduction in the ships with which he is
acquainted of the stall system for the transportation of animals and cattle he has suffered no loss
whatever during the last year. The defendant has testified, as a witness in his own behalf, that
according to his experience the system of carrying cattle loose upon the decks and in the hold is
preferable and more secure to the life and comfort of the animals, but this theory of the case is not
maintainable, either by the proofs or common reason. It can not be urged with logic that, for
instance, three hundred cattle supports for the feet and without stalls or any other protection for
them individually can safely and suitably carried in times of storm upon the decks and in the holds
of ships; such a theory is against the law of nature. One animal falling or pitching, if he is untied or
unprotected, might produce a serious panic and the wounding of half the animals upon the ship if
transported in the manner found in this case.
The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with subsidiary
imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is affirmed. So ordered.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left to the
judgment of the master of the ship. It is a question which must be determined by the court from the evidence.
On December 2, 1908, the defendant Bull brought into and disembarked in the port and city of Manila certain
cattle, which came from the port of Ampieng, Formosa, without providing suitable means for securing said
animals while in transit, so as to avoid cruelty and unnecessary suffering to said animals, contrary to the
provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275. The trial court found the
following facts, all of which are fully sustained by the evidence:

48

EDDIE B. MONTECLARO, petitioner,


vs.
THE COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35942 January 22, 1973
SEDFREY A. ORDOEZ, et al., petitioners,
vs.
THE NATIONAL TREASURER OF THE PHILIPPINES, et al., respondents.
G.R. No. L-35948 January 22, 1973
PLANAS VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

VIDAL TAN, et al., petitioners,


vs.
COMMISSION ON ELECTIONS, et al., respondents.
G.R. No. L-35953 January 22, 1973
JOSE W. DIOKNO, et al., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondents.

G.R. No. L-35925 January 22, 1973

G.R. No. L-35961 January 22, 1973

CHARITO PLANAS, petitioner,


vs.
COMMISSION ON ELECTIONS, et al., respondents.

JACINTO JIMENEZ, petitioner,


vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35929 January 22, 1973

G.R. No. L-35965 January 22, 1973

PABLO C. SANIDAD, petitioner,


vs.
COMMISSION ON ELECTIONS, et al., respondents.

RAUL M. GONZALES, petitioner,


vs.
THE HONORABLE COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35940 January 22, 1973

G.R. No. L-35979 January 22, 1973

GERARDO ROXAS, etc., et al. petitioners,


vs.
COMMISSION ON ELECTIONS, et al., respondents.

ERNESTO HIDALGO, petitioner,


vs.
COMMISSION ON ELECTIONS, et al., respondents.

G.R. No. L-35941 January 22, 1973

Ramon A. Gonzales for petitioner Charito Planas.


Pablito V. Sanidad and Gerardo L. Catipon for petitioner Pablo C. Sanidad.

49

Jovito R. Salonga and Associates and Rodrigo Law Office for petitioners Gerardo Roxas, etc., et al.
Quijano and Arroyo for petitioner Eddie B. Monteclaro.
Sedfrey A. Ordonez and Associates for petitioners Sedfrey A. Ordonez, et al.
Lorenzo M. Taada for petitioners Vidal Tan, et al.
Francis E. Garchitorena for petitioners Jose W. Diokno, et al.
Jacinto Jimenez in his own behalf.

Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad against the Commission
on Elections (Case G.R. No. L-35929); on December 11, 1972, by Gerardo Roxas, et al., against the
Commission on Elections, the Director of Printing, the National Treasurer and the Auditor General (Case G.R.
No. L-35940), by Eddie B. Monteclaro against the Commission on Elections and the Treasurer of the
Philippines (Case G.R. No. L-35941), and by Sedfrey A. Ordoez, et al. against the National Treasurer and the
Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by Vidal Tan, et al., against the
Commission on Elections, the Treasurer of the Philippines, the Auditor General and the Director of Printing
(Case G.R. No. L-35948), and by Jose W. Diokno and Benigno S. Aquino against the Commission on
Elections (Case G.R. No. L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on
Elections, the Auditor General, the Treasurer of the Philippines and the Director of the Bureau of Printing
(Case G.R. No. L-35961), and by Raul M. Gonzales against the Commission on Elections, the Budget
Commissioner, the National Treasurer and the Auditor General (Case G. R. No. L-35965); and on December
16, 1972, by Ernesto C. Hidalgo against the Commission on Elections, the Secretary of Education, the
National Treasurer and the Auditor General (Case G.R. No. L-35979).

Raul M. Gonzales in his own behalf.


Ernesto Hidalgo in his own behalf.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor General Conrado T. Limcaoco,
Solicitor Vicente V. Mendoza and Solicitor Reynato S. Puno for respondents.

CONCEPCION, C.J.:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was amended by Resolution
No. 4 of said body, adopted on June 17, 1969, calling a Convention to propose amendments to the Constitution
of the Philippines. Said Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved
on August 24, 1970, pursuant to the provisions of which the election of delegates to said Convention was held
on November 10, 1970, and the 1971 Constitutional Convention began to perform its functions on June 1,
1971. While the Convention was in session on September 21, 1972, the President issued Proclamation No.
1081 placing the entire Philippines under Martial Law. On November 29, 1972, the Convention approved its
Proposed Constitution of the Republic of the Philippines. The next day, November 30, 1972, the President of
the Philippines issued Presidential Decree No. 73, "submitting to the Filipino people for ratification or
rejection the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention,
and appropriating funds therefor," as well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G. R. No. L-35925, against the
Commission on Elections, the Treasurer of the Philippines and the Auditor General, to enjoin said "respondents
or their agents from implementing Presidential Decree No. 73, in any manner, until further orders of the
Court," upon the grounds, inter alia, that said Presidential Decree "has no force and effect as law because the
calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the prescription of the ballots
to be used and the question to be answered by the voters, and the appropriation of public funds for the purpose,
are, by the Constitution, lodged exclusively in Congress ...," and "there is no proper submission to the people
of said Proposed Constitution set for January 15, 1973, there being no freedom of speech, press and assembly,
and there being no sufficient time to inform the people of the contents thereof."

In all these cases, except the last (G.R. No. L-35979), the respondents were required to file their answers "not
later than 12: 00 (o'clock) noon of Saturday, December 16, 1972." Said cases were, also, set for hearing and
partly heard on Monday, December 18, 1972, at 9:30 a.m. The hearing was continued on December 19, 1972.
By agreement of the parties, the aforementioned last case - G.R. No. L-35979 was, also, heard, jointly with
the others, on December 19, 1972. At the conclusion of the hearing, on that date, the parties in all of the
aforementioned cases were given a short period of time within which "to submit their notes on the points they
desire to stress." Said notes were filed on different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily suspending the effects of
Proclamation No. 1081, for the purpose of free and open debate on the Proposed Constitution. On December
23, the President announced the postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when General Order No. 20 was
issued, directing "that the plebiscite scheduled to be held on January 15, 1973, be postponed until further
notice." Said General Order No. 20, moreover, "suspended in the meantime" the "order of December 17, 1972,
temporarily suspending the effects of Proclamation No. 1081 for purposes of free and open debate on the
proposed Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite, the Court deemed it fit
to refrain, for the time being, from deciding the aforementioned cases, for neither the date nor the conditions
under which said plebiscite would be held were known or announced officially. Then, again, Congress was,
pursuant to the 1935 Constitution, scheduled to meet in regular session on January 22, 1973, and since the
main objection to Presidential Decree No. 73 was that the President does not have the legislative authority to
call a plebiscite and appropriate funds therefor, which Congress unquestionably could do, particularly in view
of the formal postponement of the plebiscite by the President reportedly after consultation with, among
others, the leaders of Congress and the Commission on Elections the Court deemed it more imperative to
defer its final action on these cases.
In the afternoon of January 12, 1973, the petitioners in Case G.R. No. L-35948 filed an "urgent motion,"
praying that said case be decided "as soon as possible, preferably not later than January 15, 1973." It was
alleged in said motion, inter alia:

50

6. That the President subsequently announced the issuance of Presidential Decree No. 86
organizing the so-called Citizens Assemblies, to be consulted on certain public questions
[Bulletin Today, January 1, 1973];

"[3] Do you like Congress again to hold sessions?

7. That thereafter it was later announced that "the Assemblies will be asked if they favor
or oppose

"[5] Do you like the way President Marcos is running the affairs
of the government?" [Bulletin Today, January 10, 1973; additional
question emphasis.]

"[4] Do you like the plebiscite to be held later?

"[1] The New Society;


"[2] Reforms instituted under Martial Law;

11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies:

"[3] The holding of a plebiscite on the proposed new Constitution


and when (the tentative new date given following the
postponement of the plebiscite from the original date of January
15 are February 19 and March 5);

"[1] Do you approve of the citizens assemblies as the base of


popular government to decide issues of national interests?

"[4] The opening of the regular session slated on January 22 in


accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]

"[3] Do you want a plebiscite to be called to ratify the new


Constitution?

"[2] Do you approve of the new Constitution?

"[4] Do you want the elections to be held in November, 1973 in


accordance with the provisions of the 1935 Constitution ?

8. That it was later reported that the following are to be the forms of the questions to be
asked to the Citizens Assemblies:

"[5] If the elections would not be held, when do you want the next
elections to be called?

"[1] Do you approve of the New Society?


"[2] Do you approve of the reform measures under martial law?
"[3] Do you think that Congress should meet again in regular
session?
"[4] How soon would you like the plebiscite on the new
Constitution to be held?" [Bulletin Today, January 5, 1973;
9. That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;
10 That on January 10, 1973, it was reported that one more question would be added to
the four (4) questions previously announced, and that the forms of the questions would
be as follows:
"[1] Do you like the New Society?
"[2] Do you like the reforms under martial law?

"[6] Do you want martial law to continue?" [Bulletin Today,


January 11, 1973; emphasis supplied.]
12. That according to reports, the returns with respect to the six (6) additional questions
quoted above will be on a form similar or identical to Annex "A" hereof;
13. That attached to page 1 of Annex "A" is another page, which we marked as Annex
"A-1", and which reads:
"COMMENTS ON
QUESTION No. 1
In order to broaden the base of citizens' participation in
government.
QUESTION No. 2

51

But we do not want the Ad Interim Assembly to be convoked. Or


if it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed
Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added in
the last list of questions to be asked to the Citizens Assemblies, namely:

If the Citizens Assemblies approve of the New Constitution, then


the new Constitution should be deemed ratified.

Do you approve of the New Constitution?"

QUESTION No. 4

in relation to the question following it:

We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.

"Do you still want a plebiscite to call to ratify the new Constitution?"

QUESTION No. 5
Probably a period of at least seven (7) years moratorium on
elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.

would be an attempt to by-pass and short-circuit this Honorable Court before which the
question of the validity of the plebiscite on the proposed Constitution is now pending;
16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable Court
and the entire nation will be confronted with a fait accompli which has been attained in
a highly unconstitutional and undemocratic manner;

QUESTION No. 6
We want President Marcos to continue with Martial Law. We
want him to exercise his powers with more authority. We want
him to be strong and firm so that he can accomplish all his reform
programs and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution
without the ad interim Assembly."
Attention is respectfully invited to the comments on "Question No. 3", which reads:

17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
18. That, if such event would happen, then the case before this Honorable Court could,
to all intents and purposes, become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the will of the people through
the Citizens Assemblies, it would be announced that the proposed Constitution, with all
its defects, both congenital and otherwise, has been ratified;

"QUESTION No. 3

19. That, in such a situation, the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will not
know which Constitution is in force.

The vote of the Citizens Assemblies should be considered the


plebiscite on the New Constitution.

20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;

If the Citizens Assemblies approve of the New Constitution, then


the new Constitution should be deemed ratified.

21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer that the

52

proposed plebiscite be prohibited has now collapsed and that a free plebiscite can no
longer be held.

years of age and older, regardless of qualifications or lack thereof,


as prescribed in the Election Code;

At about the same time, a similar prayer was made in a "manifestation" filed by the petitioners in L-35949,
"Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordonez, et al. v. The National Treasurer, et al."

(b) Elections or plebiscites for the ratification of constitutional


amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of
the safeguards of freedom of action, but votes in the Citizens'
Assemblies were open and were cast by raising hands;

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution requiring the respondents
in said three (3) cases to comment on said "urgent motion" and "manifestation," "not later than Tuesday noon,
January 16, 1973." Prior thereto, or on January 15, 1973, shortly before noon, the petitioners in said Case G.R.
No. L-35948 filed a "supplemental motion for issuance of restraining order and inclusion of additional
respondents," praying
... that a restraining order be issued enjoining and restraining respondent Commission on
Elections, as well as the Department of LocaI Governments and its head, Secretary Jose
Rono; the Department of Agrarian Reforms and its head, Secretary Conrado Estrella; the
National Ratification Coordinating Committee and its Chairman, Guillermo de Vega;
their deputies, subordinates and substitutes, and all other officials and persons who may
be assigned such task, from collecting, certifying, and announcing and reporting to the
President or other officials concerned, the so-called Citizens' Assemblies referendum
results allegedly obtained when they were supposed to have met during the period
comprised between January 10 and January 15, 1973, on the two questions quoted in
paragraph 1 of this Supplemental Urgent Motion.
In support of this prayer, it was alleged
3. That petitioners are now before this Honorable Court in order to ask further that this
Honorable Court issue a restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the Department of Local Governments
and its head, Secretary Jose Rono; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from
collecting, certifying, announcing and reporting to the President the supposed Citizens'
Assemblies referendum results allegedly obtained when they were supposed to have met
during the period between January 10 and January 15, 1973, particularly on the two
questions quoted in paragraph 1 of this Supplemental Urgent Motion;
4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void
particularly insofar as such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution because:
(a) The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be
submitted for ratification, are elections at which only qualified
and duly registered voters are permitted to vote, whereas, the socalled Citizens' Assemblies were participated in by persons 15

(c) The Election Code makes ample provisions for free, orderly
and honest elections, and such provisions are a minimum
requirement for elections or plebiscites for the ratification of
constitutional amendments, but there were no similar provisions
to guide and regulate proceedings of the so-called Citizens'
Assemblies;
(d) It is seriously to be doubted that, for lack of material time,
more than a handful of the so-called Citizens' Assemblies have
been actually formed, because the mechanics of their organization
were still being discussed a day or so before the day they were
supposed to begin functioning:
"Provincial governors and city and
municipal mayors had been meeting with
barrio captains and community leaders
since last Monday (January 8, 1973) to
thresh out the mechanics in the formation
of the Citizens' Assemblies and the topics
for discussion," (Bulletin Today, January
16, 1973).
It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year (Daily Express, January 1, 1971), and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of sufficient
guidelines for organizations, it is too much to believe that such assemblies could be
organized at such a short notice.
5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the Urgent
Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973. But be that as it
may, the said additional officials and agencies may be properly included in the petition
at bar because:

53

(a) The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of
"any similar decree, proclamation, order or instruction"
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed
Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in
this case, and those who enforce, implement, or carry out the said Presidential Decree
No. 86, and the instructions incidental thereto clearly fall within the scope of this
petition;
(b) In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named
in the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree,
order, instruction, or proclamation in relation to the holding of a
plebiscite on January 15, 1973 for the purpose of submitting to
the Filipino people for their ratification or rejection the 1972
Draft or proposed Constitution approved by the Constitutional
Convention on November 30, 1972'; and finally,
(c) Petitioners prayed for such other relief which may be just and
equitable. (p. 39, Petition).
"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached
by the processes of this Honorable Court by reason of this petition, considering,
furthermore, that the Commission on Elections has under our laws the power, among
others, of:
"a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials
required by law to perform duties relative to the conduct of
elections on matters pertaining to the enforcement of the
provisions of this Code ... ." (Election Code of 1971, Sec. 3).
6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in paragraph 3
of this Supplemental Urgent Motion are restrained or enjoined from collecting,
certifying, reporting or announcing to the President the results of the alleged voting of
the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of
the Philippines, the Filipino people, the cause of freedom and democracy, and the
petitioners herein because:
(a) After the result of the supposed voting on the questions mentioned in paragraph 1
hereof shall have been announced, a conflict will arise between those who maintain that
the 1935 Constitution is still in force, on the one hand, and those who will maintain that

it has been superseded by the proposed Constitution, on the other, thereby creating
confusion, if not chaos;
(b) Even the jurisdiction of this Court will be subject to serious attack because the
advocates of the theory that the proposed Constitution has been ratified by reason of the
announcement of the results of the proceedings of the so-called Citizens' Assemblies
will argue that, General Order No. 3, which shall also be deemed ratified pursuant to the
Transitory Provisions of the proposed Constitution, has placed Presidential Decrees Nos.
73 and 86 beyond the reach and jurisdiction of this Honorable Court.
On the same date January 15, 1973 the Court passed a resolution requiring the respondents in said case
G.R. No. L-35948 to "file an answer to the said motion not later than 4 P.M., Tuesday, January 16, 1973," and
setting the motion for hearing "on January 17, 1973, at 9:30 a.m." While the case was being heard, on the date
last mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and said that, upon
instructions of the President, he (the Secretary of Justice) was delivering to him (the writer) a copy of
Proclamation No. 1102, which had just been signed by the President. Thereupon, the writer returned to the
Session Hall and announced to the Court, the parties in G.R. No. L-35948 inasmuch as the hearing in
connection therewith was still going on and the public there present that the President had, according to
information conveyed by the Secretary of Justice, signed said Proclamation No. 1102, earlier that morning.
Thereupon, the writer read Proclamation No. 1102 which is of the following tenor:
BY THE PRESIDENT OF THE PHILIPPINES
PROCLAMATION NO. 1102
ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the barrio, district or
ward secretary;
WHEREAS, the said Citizens Assemblies were established precisely to broaden the base
of citizen participation in the democratic process and to afford ample opportunity for the
citizenry to express their views on important national issues;
WHEREAS, responding to the clamor of the people and pursuant to Presidential Decree
No. 86-A, dated January 5, 1973, the following questions were posed before the Citizens
Assemblies or Barangays: Do you approve of the New Constitution? Do you still want a
pIebiscite to be called to ratify the new Constitution?

54

WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixty-one
(14,976,561) members of all the Barangays (Citizens Assemblies) voted for the adoption
of the proposed Constitution, as against seven hundred forty-three thousand eight
hundred sixty-nine (743,869) who voted for its rejection; while on the question as to
whether or not the people would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
WHEREAS, since the referendum results show that more than ninety-five (95) per cent
of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new
Constitution should already be deemed ratified by the Filipino people;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
By the President:
ALEJANDRO MELCHOR
Executive Secretary
Such is the background of the cases submitted for Our determination. After admitting some of the allegations
made in the petition in L-35948 and denying the other allegations thereof, respondents therein alleged in their
answer thereto, by way of affirmative defenses: 1) that the "questions raised" in said petition "are political in
character"; 2) that "the Constitutional Convention acted freely and had plenary authority to propose not only
amendments but a Constitution which would supersede the present Constitution"; 3) that "the President's call
for a plebiscite and the appropriation of funds for this purpose are valid"; 4) that "there is not an improper
submission" and "there can be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed
Constitution is vague and incomplete, makes an unconstitutional delegation of power, includes a referendum
on the proclamation of Martial Law and purports to exercise judicial power" is "not relevant and ... without
merit." Identical defenses were set up in the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that date, the Members of the
Court have been deliberating on the aforementioned cases and, after extensive discussions on the merits
thereof, have deemed it best that each Member write his own views thereon and that thereafter the Chief

Justice should state the result or the votes thus cast on the points in issue. Hence, the individual views of my
brethren in the Court are set forth in the opinions attached hereto, except that, instead of writing their separate
opinions, some Member have preferred to merely concur in the opinion of one of our colleagues.
What follows is my own view on these cases.
The first question for Our determination is whether We have authority to pass upon the validity of Presidential
Decree No. 73, in view of the Solicitor General's allegation to the effect that said question is a political one. I
am of the opinion on which the Members of the Court are unanimous that the contention of the Solicitor
General is untenable and that the issue aforementioned is a justiciable one. Indeed, the contested decree
purports to have the force and effect of a legislation, so that the issue on the validity thereof is manifestly a
justiciable one, on the authority, not only of a long list of cases in which the Court has passed upon the
constitutionality of statutes and/or acts of the Executive, 1 but, also, of no less than that of Subdivision (1) of
Section 2, Article VIII of the 1935 Constitution, 2 which expressly provides for the authority of this Court to
review cases involving said issue.
Petitioners in G.R. No. L-35948 maintain that the 1971 Constitutional Convention had exceeded its authority
in approving Sections 2, 3 (par. 2) and 12 of Article XVII of the proposed Constitution. Regardless of the
wisdom and moral aspects of the contested provisions of the proposed Constitution, it is my considered view
that the Convention was legally free to postulate any amendment it may deem fit to propose save perhaps
what is or may be inconsistent with what is now known, particularly in international law, as Jus Cogens not
only because the Convention exercised sovereign powers delegated thereto by the people although insofar
only as the determination of the proposals to be made and formulated by said body is concerned but, also,
because said proposals cannot be valid as part of our Fundamental Law unless and until "approved by the
majority of the votes cast at an election at which" " said proposals "are submitted to the people for their
ratification," as provided in Section 1 of Art. XV of the 1935 Constitution.
As regards the authority of the President to issue Presidential Decree No. 73, "submitting to the Filipino people
(on January 15, 1973) for ratification or rejection the Constitution of the Republic of the Philippines proposed
by the 1971 Constitutional Convention and appropriating funds therefor," I find it unnecessary, for the time
being, to pass upon such question, because the plebiscite ordained in said Decree has been postponed. In any
event, should the plebiscite be scheduled to be held at any time later, the proper parties may then file such
action as the circumstances may justify.
With respect to the question whether or not martial law per se affects the validity of a submission to the people
for ratification of specific proposals for amendment of the Constitution, I consider this matter as one intimately
and necessarily related to the validity of Proclamation No. 1102 of the President of the Philippines. This
question has not been explicitly raised, however, in any of the cases under consideration, said cases having
been filed before the issuance of such Proclamation, although the petitioners in L-35948 maintain that the issue
on the referral of the Proposed Constitution to the Citizens' Assemblies may be deemed and was raised in their
Supplemental Motion of January 15, 1973. At any rate, said question has not been adequately argued by the
parties in any of these cases, and it would not be proper to resolve such a transcendental question without the
most thorough discussion possible under the circumstances. In fairness to the petitioners in L-35948 and
considering the surrounding circumstances, I believe, therefore, that, instead of dismissing the case as moot
and academic, said petitioners should be given a reasonable period of time within which to move in the
premises.

55

Recapitulating the views expressed by the Members of the Court, the result is this:

d. Justice Antonio feels "that the Court is not competent to act" on the issue whether the
Proposed Constitution has been ratified by the people or not, "in the absence of any
judicially discoverable and manageable standards," since the issue "poses a question of
fact.

1. There is unanimity on the justiciable nature of the issue on the legality of Presidential Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee, Esguerra and myself,
or six (6) Members of the Court, are of the opinion that the issue has become moot and academic, whereas
Justices Barredo, Makasiar and Antonio voted to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed Constitution or to incorporate
therein the provisions contested by the petitioners in
L-35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has become moot and
academic. Justices Fernando, Barredo, Makasiar, Antonio and myself have voted to uphold the authority of the
Convention.
4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional Convention had authority to
continue in the performance of its functions despite the proclamation of Martial Law. In effect, Justices
Barredo, Makasiar and Antonio hold the same view.

7. On the question whether or not these cases should dismissed, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted in the affirmative, for the reasons set forth in their respective opinions.
Justices Fernando, Teehankee and the writer similarly voted, except as regards Case No. L-35948 as to which
they voted to grant to the petitioners therein a reasonable period of time within which to file appropriate
pleadings should they wish to contest the legality of Presidential Proclamation No. 1102. Justice Zaldivar
favors the granting of said period to the petitioners in said Case No.
L-35948 for the aforementioned purpose, but he believes, in effect, that the Court should go farther and decide
on the merits everyone of the cases under Consideration.
WHEREFORE, all of the aforementioned cases are hereby dismissed, without special pronouncement as to
costs.
It is so ordered.

5. On the question whether the proclamation of Martial Law affected the proper submission of the proposed
Constitution to a plebiscite, insofar as the freedom essential therefor is concerned, Justice Fernando is of the
opinion that there is a repugnancy between the election contemplated under Art. XV of the 1935 Constitution
and the existence of Martial Law, and would, therefore, grant the petitions were they not moot and academic.
Justices Barredo, Antonio and Esguerra are of the opinion that that issue involves question of fact which
cannot be predetermined, and that Martial Law per se does not necessarily preclude the factual possibility of
adequate freedom for the purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar, Esguerra and myself are
of the opinion that question of validity of said Proclamation has not been properly raised
before the Court, which, accordingly, should not pass upon such question.
b. Justice Barredo holds that the issue on the constitutionality of Proclamation No. 1102
has been submitted to and should be determined by the Court, and that the "purported
ratification of the Proposed Constitution ... based on the referendum among Citizens'
Assemblies falls short of being in strict conformity with the requirements of Article XV
of the 1935 Constitution," but that such unfortunate drawback notwithstanding,
"considering all other related relevant circumstances, ... the new Constitution is legally
recognizable and should be recognized as legitimately in force.
c. Justice Zaldivar maintains unqualifiedly that the Proposed Constitution has not been
ratified in accordance with Article XV of the 1935 Constitution, and that, accordingly, it
has no force and effect whatsoever.

JAVELLANA VS EXEC SEC


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

56

G.R. No. L-36142 March 31, 1973


JOSUE JAVELLANA, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF JUSTICE AND THE SECRETARY OF FINANCE, respondents.
G.R. No. L-36164 March 31, 1973
VIDAL TAN, J. ANTONIO ARANETA, ALEJANDRO ROCES, MANUEL CRUDO, ANTONIO U.
MIRANDA, EMILIO DE PERALTA AND LORENZO M. TAADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE , THE SECRETARY OF
JUSTICE, THE SECRETARY OF LAND REFORM, THE SECRETARY OF NATIONAL DEFENSE,
THE AUDITOR GENERAL, THE BUDGET COMMISSIONER, THE CHAIRMAN OF
PRESIDENTIAL COMMISSION ON REORGANIZATION, THE TREASURER OF THE
PHILIPPINES, THE COMMISSION ON ELECTIONS AND THE COMMISSIONER OF CIVIL
SERVICE, respondents.

Taada, Salonga, Ordoez, Rodrigo, Sanidad, Roxas. Gonzales and Arroyo for petitioners Gerardo Roxas, et
al.
Joker P. Arroyo and Rogelio B. Padilla for petitioner Eddie Monteclaro.
Raul M. Gonzales and Associates for petitioners Napoleon V. Dilag, et al.
Arturo M. Tolentino for respondents Gil J. Puyat and Jose Roy.
Office of the Solicitor General Estelito P. Mendoza, Solicitor Vicente V. Mendoza and Solicitor Reynato S.
Puno for other respondents.
RESOLUTION

CONCEPCION, C.J.:
G.R. No. L-36165 March 31, 1973.
GERARDO ROXAS, AMBROSIO PADILLA, JOVITO R. SALONGA, SALVADOR H. LAUREL,
RAMON V. MITRA, JR. and EVA ESTRADA-KALAW, petitioners,
vs.
ALEJANDRO MELCHOR, in his capacity as Executive Secretary; JUAN PONCE ENRILE, in his
capacity as Secretary of National Defense; General ROMEO ESPINO, in his capacity as Chief of Staff
of the Armed Forces of the Philippines; TANCIO E. CASTAEDA, in his capacity as Secretary General
Services; Senator GIL J. PUYAT, in his capacity as President of the Senate; and Senator JOSE ROY, his
capacity, as President Pro Tempore of the of the Senate, respondents.
G.R. No. L-36236 March 31, 1973
EDDIE B. MONTECLARO, [personally and in his capacity as President of the National Press Club of
the Philippines], petitioner,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF PUBLIC INFORMATION, THE AUDITOR
GENERAL, THE BUDGET COMMISSIONER & THE NATIONAL TREASURER, respondents.
G.R. No. L-36283 March 31, 1973
NAPOLEON V. DILAG, ALFREDO SALAPANTAN, JR., LEONARDO ASODISEN, JR., and RAUL
M. GONZALEZ, petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, THE HONORABLE SECRETARY OF NATIONAL
DEFENSE, THE HONORABLE BUDGET COMMISSIONER, THE HONORABLE AUDITOR
GENERAL, respondents.
Ramon A. Gonzales for petitioner Josue Javellana.
Lorenzo M. Taada and Associates for petitioners Vidal Tan, et al.

The above-entitled five (5) cases are a sequel of cases G.R. Nos. L-35925,
L-35929, L-35940, L-35941, L-35942, L-35948, L-35953, L-35961, L-35965 and
L-35979, decided on January 22, 1973, to which We will hereafter refer collectively as the plebiscite cases.
Background of the Plebiscite Cases.
The factual setting thereof is set forth in the decision therein rendered, from which We quote:
On March 16, 1967, Congress of the Philippines passed Resolution No. 2, which was
amended by Resolution No. 4 of said body, adopted on June 17, 1969, calling a
Convention to propose amendments to the Constitution of the Philippines. Said
Resolution No. 2, as amended, was implemented by Republic Act No. 6132, approved
on August 24, 1970, pursuant to the provisions of which the election of delegates to said
Convention was held on November 10, 1970, and the 1971 Constitutional Convention
began to perform its functions on June 1, 1971. While the Convention was in session on
September 21, 1972, the President issued Proclamation No. 1081 placing the entire
Philippines under Martial Law. On November 29, 1972, the Convention approved its
Proposed Constitution of the Republic of the Philippines. The next day, November 30,
1972, the President of the Philippines issued Presidential Decree No. 73, "submitting to
the Filipino people for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention, and appropriating funds
therefor," as well as setting the plebiscite for said ratification or rejection of the
Proposed Constitution on January 15, 1973.
Soon after, or on December 7, 1972, Charito Planas filed, with this Court, Case G.R. No.
L-35925, against the Commission on Elections, the Treasurer of the Philippines and the
Auditor General, to enjoin said "respondents or their agents from implementing
Presidential Decree No. 73, in any manner, until further orders of the Court," upon the
grounds, inter alia, that said Presidential Decree "has no force and effect as law because
the calling ... of such plebiscite, the setting of guidelines for the conduct of the same, the
prescription of the ballots to be used and the question to be answered by the voters, and
the appropriation of public funds for the purpose, are, by the Constitution, lodged

57

exclusively in Congress ...," and "there is no proper submission to the people of said
Proposed Constitution set for January 15, 1973, there being no freedom of speech, press
and assembly, and there being no sufficient time to inform the people of the contents
thereof."
Substantially identical actions were filed, on December 8, 1972, by Pablo C. Sanidad
against the Commission on Elections (Case G.R. No. L- 35929) on December 11, 1972,
by Gerardo Roxas, et al., against the Commission on Elections, the Director of Printing,
the National Treasurer and the Auditor General (Case G.R. L-35940), by Eddie B.
Monteclaro against the Commission on Elections and the Treasurer of the Philippines
(Case G.R. No. L-35941), and by Sedfrey Ordoez, et al. against the National Treasurer
and the Commission on Elections (Case G.R. No. L-35942); on December 12, 1972, by
Vidal Tan, et al., against the Commission on Elections, the Treasurer of the Philippines,
the Auditor General and the Director of Printing (Case G.R. No. L-35948) and by Jose
W. Diokno and Benigno S. Aquino against the Commission on Elections (Case G.R. No.
L-35953); on December 14, 1972, by Jacinto Jimenez against the Commission on
Elections, the Auditor General, the Treasurer of the Philippines and the Director of the
Bureau of Printing (Case G.R. No. L-35961), and by Raul M. Gonzales against the
Commission on Elections, the Budget Commissioner, the National Treasurer and the
Auditor General (Case G.R. No. L-35965); and on December 16, 1972, by Ernesto C.
Hidalgo against the Commission on Elections, the Secretary of Education, the National
Treasurer and the Auditor General (Case G.R. No. L-35979).
In all these cases, except the last (G.R. No. L-35979), the respondents were required to
file their answers "not later than 12:00 (o'clock) noon of Saturday, December 16, 1972."
Said cases were, also, set for hearing and partly heard on Monday, December 18, 1972,
at 9:30 a.m. The hearing was continued on December 19, 1972. By agreement of the
parties, the aforementioned last case G.R. No. L-35979 was, also, heard, jointly
with the others, on December 19, 1972. At the conclusion of the hearing, on that date,
the parties in all of the aforementioned cases were given a short period of time within
which "to submit their notes on the points they desire to stress." Said notes were filed on
different dates, between December 21, 1972, and January 4, 1973.
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced the
postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
January 15, 1978, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for purposes of free and open debate
on the proposed Constitution."
In view of these events relative to the postponement of the aforementioned plebiscite,
the Court deemed it fit to refrain, for the time being, from deciding the aforementioned
cases, for neither the date nor the conditions under which said plebiscite would be held
were known or announced officially. Then, again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January 22, 1973, and since the
main objection to Presidential Decree No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal postponement of the
plebiscite by the President reportedly after consultation with, among others, the

leaders of Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
"In the afternoon of January 12, 1973, the petitioners in Case G.R. No.
L-35948 filed an "urgent motion," praying that said case be decided "as soon as
possible, preferably not later than January 15, 1973." It was alleged in said motion, inter
alia:
"6. That the President subsequently announced the issuance of Presidential Decree No.
86 organizing the so-called Citizens Assemblies, to be consulted on certain public
questions [Bulletin Today, January 1, 1973];
"7. That thereafter it was later announced that "the Assemblies will be asked if they
favor or oppose
[1] The New Society;
[2] Reforms instituted under Martial Law;
[3] The holding of a plebiscite on the proposed new Constitution
and when (the tentative new dates given following the
postponement of the plebiscite from the original date of January
15 are February 19 and March 5);
[4] The opening of the regular session slated on January 22 in
accordance with the existing Constitution despite Martial Law."
[Bulletin Today, January 3, 1973.]
"8. That it was later reported that the following are to be the forms of the questions to be
asked to the Citizens Assemblies:
[1] Do you approve of the New Society?
[2] Do you approve of the reform measures under martial law?
[3] Do you think that Congress should meet again in regular
session?
[4] How soon would you like the plebiscite on the new
Constitution to be held? [Bulletin Today, January 5, 1973].
"9. That the voting by the so-called Citizens Assemblies was announced to take place
during the period from January 10 to January 15, 1973;
"10. That on January 10, 1973, it was reported that on more question would be added to
the four (4) question previously announced, and that the forms of the question would be
as follows:

58

[1] Do you like the New Society?


[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos running the affairs of
the government? [Bulletin Today, January 10, 1973; emphasis an
additional question.]
"11. That on January 11, 1973, it was reported that six (6) more questions would be
submitted to the so-called Citizens Assemblies:
[1] Do you approve of the citizens assemblies as the base of
popular government to decide issues of national interests?
[2] Do you approve of the new Constitution?

But we do not want the Ad Interim Assembly to be convoked. Or


if it is to be convened at all, it should not be done so until after at
least seven (7) years from the approval of the New Constitution
by the Citizens Assemblies.
QUESTION No. 3
The vote of the Citizens Assemblies should already be considered
the plebiscite on the New Constitution.
If the Citizens Assemblies approve of the New Constitution, then
the new Constitution should be deemed ratified.
QUESTION No. 4
We are sick and tired of too frequent elections. We are fed up with
politics, of so many debates and so much expenses.
QUESTION No. 5

[3] Do you want a plebiscite to be called to ratify the new


Constitution?

Probably a period of at least seven (7) years moratorium on


elections will be enough for stability to be established in the
country, for reforms to take root and normalcy to return.

[4] Do you want the elections to be held in November, 1973 in


accordance with the provisions of the 1935 Constitution?

QUESTION No. 6

[5] If the elections would not be held, when do you want the next
elections to be called?
[6] Do you want martial law to continue? [Bulletin Today,
January 11, 1973; emphasis supplied]
"12. That according to reports, the returns with respect to the six (6) additional questions
quoted above will be on a form similar or identical to Annex "A" hereof;
"13. That attached to page 1 of Annex "A" is another page, which we marked as Annex
"A-1", and which reads:

We want President Marcos to continue with Martial Law. We


want him to exercise his powers with more authority. We want
him to be strong and firm so that he can accomplish all his reform
programs and establish normalcy in the country. If all other
measures fail, we want President Marcos to declare a
revolutionary government along the lines of the new Constitution
without the ad interim Assembly."
"Attention is respectfully invited to the comments on "Question No. 3," which reads:
QUESTION No. 3
The vote of the Citizens Assemblies should be considered the
plebiscite on the New Constitution.

COMMENTS ON

If the Citizens Assemblies approve of the New Constitution, then


the new Constitution should be deemed ratified.

QUESTION No. 1
In order to broaden the base of citizens'
participation in government.
QUESTION No. 2

This, we are afraid, and therefore allege, is pregnant with ominous possibilities.
14. That, in the meantime, speaking on television and over the radio, on January 7,
1973, the President announced that the limited freedom of debate on the proposed

59

Constitution was being withdrawn and that the proclamation of martial law and the
orders and decrees issued thereunder would thenceforth strictly be enforced [Daily
Express, January 8, 1973];
15. That petitioners have reason to fear, and therefore state, that the question added in
the last list of questions to be asked to the Citizens Assemblies, namely:
in relation to the question following it:
Do you still want a
plebiscite to be
called to ratify the
new Constitution?"

would be an attempt to by-pass and short-circuit this Honorable Court before which the
question of the validity of the plebiscite on the proposed Constitution is now pending;
"16. That petitioners have reason to fear, and therefore allege, that if an affirmative
answer to the two questions just referred to will be reported then this Honorable Court
and the entire nation will be confronted with a fait accompli which has been attained in
a highly unconstitutional and undemocratic manner;
"17. That the fait accompli would consist in the supposed expression of the people
approving the proposed Constitution;
"18. That, if such event would happen, then the case before this Honorable Court could,
to all intents and purposes, become moot because, petitioners fear, and they therefore
allege, that on the basis of such supposed expression of the will of the people through
the Citizens Assemblies, it would be announced that the proposed Constitution, with all
its defects, both congenital and otherwise, has been ratified;
"19. That, in such a situation the Philippines will be facing a real crisis and there is
likelihood of confusion if not chaos, because then, the people and their officials will not
know which Constitution is in force.
"20. That the crisis mentioned above can only be avoided if this Honorable Court will
immediately decide and announce its decision on the present petition;
"21. That with the withdrawal by the President of the limited freedom of discussion on
the proposed Constitution which was given to the people pursuant to Sec. 3 of
Presidential Decree No. 73, the opposition of respondents to petitioners' prayer at the
plebiscite be prohibited has now collapsed and that a free plebiscite can no longer be
held."
At about the same time, a similar prayer was made in a "manifestation" filed by the
petitioners in L-35949, "Gerardo Roxas, et al. v. Commission on Elections, et al.," and
L-35942, "Sedfrey A. Ordoez, et al. v. The National Treasurer, et al."

The next day, January 13, 1973, which was a Saturday, the Court issued a resolution
requiring the respondents in said three (3) cases to comment on said "urgent motion"
and "manifestation," "not later than Tuesday noon, January 16, 1973." Prior thereto, or
on January 15, 1973, shortly before noon, the petitioners in said Case G.R. No. L-35948
riled a "supplemental motion for issuance of restraining order and inclusion of
additional respondents," praying
"... that a restraining order be issued enjoining and restraining
respondent Commission on Elections, as well as the Department
of Local Governments and its head, Secretary Jose Roo; the
Department of Agrarian Reforms and its head, Secretary Conrado
Estrella; the National Ratification Coordinating Committee and
its Chairman, Guillermo de Vega; their deputies, subordinates and
substitutes, and all other officials and persons who may be
assigned such task, from collecting, certifying, and announcing
and reporting to the President or other officials concerned, the socalled Citizens' Assemblies referendum results allegedly obtained
when they were supposed to have met during the period
comprised between January 10 and January 15, 1973, on the two
questions quoted in paragraph 1 of this Supplemental Urgent
Motion."
In support of this prayer, it was alleged
"3. That petitioners are now before this Honorable Court in order to ask further that this
Honorable Court issue a restraining order enjoining herein respondents, particularly
respondent Commission on Elections as well as the Department of Local Governments
and its head, Secretary Jose Roo; the Department of Agrarian Reforms and its head,
Secretary Conrado Estrella; the National Ratification Coordinating Committee and its
Chairman, Guillermo de Vega; and their deputies, subordinates and/or substitutes, from
collecting, certifying, announcing and reporting to the President the supposed Citizens'
Assemblies referendum results allegedly obtained when they were supposed to have met
during the period between January 10 and January 15, 1973, particularly on the two
questions quoted in paragraph 1 of this Supplemental Urgent Motion;
"4. That the proceedings of the so-called Citizens' Assemblies are illegal, null and void
particularly insofar as such proceedings are being made the basis of a supposed
consensus for the ratification of the proposed Constitution because:
[a] The elections contemplated in the Constitution, Article XV, at
which the proposed constitutional amendments are to be
submitted for ratification, are elections at which only qualified
and duly registered voters are permitted to vote, whereas, the so
called Citizens' Assemblies were participated in by persons 15
years of age and older, regardless of qualifications or lack thereof,
as prescribed in the Election Code;
[b] Elections or plebiscites for the ratification of constitutional
amendments contemplated in Article XV of the Constitution have
provisions for the secrecy of choice and of vote, which is one of
the safeguards of freedom of action, but votes in the Citizens'
Assemblies were open and were cast by raising hands;

60

[c] The Election Code makes ample provisions for free, orderly
and honest elections, and such provisions are a minimum
requirement for elections or plebiscites for the ratification of
constitutional amendments, but there were no similar provisions
to guide and regulate proceedings of the so called Citizens'
Assemblies;
[d] It is seriously to be doubted that, for lack of material time,
more than a handful of the so called Citizens' Assemblies have
been actually formed, because the mechanics of their organization
were still being discussed a day or so before the day they were
supposed to begin functioning:
"Provincial governors and city and
municipal mayors had been meeting with
barrio captains and community leaders
since last Monday [January 8, 1973) to
thresh out the mechanics in the formation
of the Citizens Assemblies and the topics
for discussion." [Bulletin Today, January
10, 1973]
"It should be recalled that the Citizens' Assemblies were ordered formed only at the
beginning of the year [Daily Express, January 1, 1973], and considering the lack of
experience of the local organizers of said assemblies, as well as the absence of sufficient
guidelines for organization, it is too much to believe that such assemblies could be
organized at such a short notice.
"5. That for lack of material time, the appropriate amended petition to include the
additional officials and government agencies mentioned in paragraph 3 of this
Supplemental Urgent Motion could not be completed because, as noted in the Urgent
Motion of January 12, 1973, the submission of the proposed Constitution to the Citizens'
Assemblies was not made known to the public until January 11, 1973. But be that as it
may, the said additional officials and agencies may be properly included in the petition
at bar because:
[a] The herein petitioners have prayed in their petition for the
annulment not only of Presidential Decree No. 73, but also of
"any similar decree, proclamation, order or instruction.
so that Presidential Decree No. 86, insofar at least as it attempts to submit the proposed
Constitution to a plebiscite by the so-called Citizens' Assemblies, is properly in issue in
this case, and those who enforce, implement, or carry out the said Presidential Decree
No. 86. and the instructions incidental thereto clearly fall within the scope of this
petition;
[b] In their petition, petitioners sought the issuance of a writ of
preliminary injunction restraining not only the respondents named
in the petition but also their "agents" from implementing not only
Presidential Decree No. 73, but also "any other similar decree,
order, instruction, or proclamation in relation to the holding of a
plebiscite on January 15, 1973 for the purpose of submitting to

the Filipino people for their ratification or rejection the 1972


Draft or proposed Constitution approved by the Constitutional
Convention on November 30, 1972"; and finally,
[c] Petitioners prayed for such other relief which may be just and
equitable. [p. 39, Petition].
"Therefore, viewing the case from all angles, the officials and government agencies
mentioned in paragraph 3 of this Supplemental Urgent Motion, can lawfully be reached
by the processes of this Honorable Court by reason of this petition, considering,
furthermore, that the Commission on Elections has under our laws the power, among
others, of:
(a) Direct and immediate supervision and control over national,
provincial, city, municipal and municipal district officials
required by law to perform duties relative to the conduct of
elections on matters pertaining to the enforcement of the
provisions of this Code ..." [Election Code of 1971, Sec. 3].
"6. That unless the petition at bar is decided immediately and the Commission on
Elections, together with the officials and government agencies mentioned in paragraph 3
of this Supplemental Urgent Motion are restrained or enjoined from collecting,
certifying, reporting or announcing to the President the results of the alleged voting of
the so-called Citizens' Assemblies, irreparable damage will be caused to the Republic of
the Philippines, the Filipino people, the cause of freedom an democracy, and the
petitioners herein because:
[a] After the result of the supposed voting on the questions
mentioned in paragraph 1 hereof shall have been announced, a
conflict will arise between those who maintain that the 1935
Constitution is still in force, on the one hand, and those who will
maintain that it has been superseded by the proposed
Constitution, on the other, thereby creating confusion, if not
chaos;
[b] Even the jurisdiction of this Court will be subject to serious
attack because the advocates of the theory that the proposed
Constitution has been ratified by reason of the announcement of
the results of the proceedings of the so-called Citizens'
Assemblies will argue that, General Order No. 3, which shall also
be deemed ratified pursuant to the Transitory Provisions of the
proposed Constitution, has placed Presidential Decree Nos. 73
and 86 beyond the reach and jurisdiction of this Honorable
Court."
On the same date January 15, 1973 the Court passed a resolution requiring the
respondents in said case G.R. No. L-35948 to file "file an answer to the said motion not
later than 4 P.M., Tuesday, January 16, 1973," and setting the motion for hearing "on
January 17, 1973, at 9:30 a.m." While the case was being heard, on the date last
mentioned, at noontime, the Secretary of Justice called on the writer of this opinion and
said that, upon instructions of the President, he (the Secretary of Justice) was delivering
to him (the writer) a copy of Proclamation No. 1102, which had just been signed by the

61

President. Thereupon, the writer returned to the Session Hall and announced to the
Court, the parties in G.R. No. L-35948 inasmuch as the hearing in connection
therewith was still going on and the public there present that the President had,
according to information conveyed by the Secretary of Justice, signed said Proclamation
No. 1102, earlier that morning. Thereupon, the writer read Proclamation No. 1102 which
is of the following tenor:
"BY THE PRESIDENT OF THE PHILIPPINES
"PROCLAMATION NO. 1102
"ANNOUNCING THE RATIFICATION BY THE FILIPINO PEOPLE OF THE
CONSTITUTION PROPOSED BY THE 1971 CONSTITUTIONAL CONVENTION.
"WHEREAS, the Constitution proposed by the nineteen hundred seventy-one
Constitutional Convention is subject to ratification by the Filipino people;
"WHEREAS, Citizens Assemblies were created in barrios, in municipalities and in
districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated
December 31, 1972, composed of all persons who are residents of the barrio, district or
ward for at least six months, fifteen years of age or over, citizens of the Philippines and
who are registered in the list of Citizen Assembly members kept by the barrio, district or
ward secretary;
"WHEREAS, the said Citizens Assemblies were established precisely to broaden the
base of citizen participation in the democratic process and to afford ample opportunity
for the citizenry to express their views on important national issues;
"WHEREAS, responding to the clamor of the people and pursuant to Presidential
Decree No. 86-A, dated January 5, 1973, the following questions were posed before the
Citizens Assemblies or Barangays: Do you approve of the New Constitution? Do you
still want a plebiscite to be called to ratify the new Constitution?
"WHEREAS, fourteen million nine hundred seventy-six thousand five hundred sixtyone (14,976,561) members of all the Barangays (Citizens Assemblies) voted for the
adoption of the proposed Constitution, as against seven hundred forty-three thousand
eight hundred sixty-nine (743,869) who voted for its rejection; while on the question as
to whether or not the people would still like a plebiscite to be called to ratify the new
Constitution, fourteen million two hundred ninety-eight thousand eight hundred fourteen
(14,298,814) answered that there was no need for a plebiscite and that the vote of the
Barangays (Citizens Assemblies) should be considered as a vote in a plebiscite;
"WHEREAS, since the referendum results show that more than ninety-five (95) per cent
of the members of the Barangays (Citizens Assemblies) are in favor of the new
Constitution, the Katipunan ng Mga Barangay has strongly recommended that the new
Constitution should already be deemed ratified by the Filipino people;
"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers in me vested by the Constitution, do hereby certify and proclaim
that the Constitution proposed by the nineteen hundred and seventy-one (1971)
Constitutional Convention has been ratified by an overwhelming majority of all of the

votes cast by the members of all the Barangays (Citizens Assemblies) throughout the
Philippines, and has thereby come into effect.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the
Republic of the Philippines to be affixed.
"Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen
hundred and seventy-three.
"ALEJANDRO MELCHOR
"Executive Secretary"
Such is the background of the cases submitted determination. After admitting some of
the allegations made in the petition in L-35948 and denying the other allegations
thereof, respondents therein alleged in their answer thereto, by way affirmative
defenses: 1) that the "questions raised" in said petition "are political in character"; 2)
that "the Constitutional Convention acted freely and had plenary authority to propose
not only amendments but a Constitution which would supersede the present
Constitution"; 3) that "the President's call for a plebiscite and the appropriation of funds
for this purpose are valid"; 4) that "there is not an improper submission" and "there can
be a plebiscite under Martial Law"; and 5) that the "argument that the Proposed
Constitution is vague and incomplete, makes an unconstitutional delegation of power,
includes a referendum on the proclamation of Martial Law and purports to exercise
judicial power" is "not relevant and ... without merit." Identical defenses were set up in
the other cases under consideration.
Immediately after the hearing held on January 17, 1973, or since the afternoon of that
date, the Members of the Court have been deliberating on the aforementioned cases and,
after extensive discussions on the merits thereof, have deemed it best that each Member
write his own views thereon and that thereafter the Chief Justice should state the result
or the votes thus cast on the points in issue. Hence, the individual views of my brethren
in the Court are set forth in the opinions attached hereto, except that, instead of writing
their separate opinions, some Members have preferred to merely concur in the opinion
of one of our colleagues.
Then the writer of said decision expressed his own opinion on the issues involved therein, after which he
recapitulated the views of the Members of the Court, as follows:
1. There is unanimity on the justiciable nature of the issue on the legality of Presidential
Decree No. 73.
2. On the validity of the decree itself, Justices Makalintal, Castro, Fernando, Teehankee,
Esguerra and myself, or six (6) Members of the Court, are of the opinion that the issue
has become moot and academic, whereas Justices Barredo, Makasiar and Antonio voted
to uphold the validity of said Decree.
3. On the authority of the 1971 Constitutional Convention to pass the proposed
Constitution or to incorporate therein the provisions contested by the petitioners in L35948, Justices Makalintal, Castro, Teehankee and Esguerra opine that the issue has
become moot and academic. Justices Fernando, Barredo, Makasiar, Antonio and myself
have voted to uphold the authority of the Convention.

62

4. Justice Fernando, likewise, expressed the view that the 1971 Constitutional
Convention had authority to continue in the performance of its functions despite the
proclamation of Martial Law. In effect, Justices Barredo, Makasiar and Antonio hold the
same view.
5. On the question whether the proclamation of Martial Law affected the proper
submission of the proposed Constitution to a plebiscite, insofar as the freedom essential
therefor is concerned, Justice Fernando is of the opinion that there is a repugnancy
between the election contemplated under Art. XV of the 1935 Constitution and the
existence of Martial Law, and would, therefore, grant the petitions were they not moot
and academic. Justices Barredo, Antonio and Esguerra are of the opinion that issue
involves questions of fact which cannot be predetermined, and that Martial Law per
se does not necessarily preclude the factual possibility of adequate freedom, for the
purposes contemplated.
6. On Presidential Proclamation No. 1102, the following views were expressed:
a. Justices Makalintal, Castro, Fernando, Teehankee, Makasiar,
Esguerra and myself are of the opinion that the question of
validity of said Proclamation has not been properly raised before
the Court, which, accordingly, should not pass upon such
question.
b. Justice Barredo holds that the issue on the constitutionality of
Proclamation No. 1102 has been submitted to and should be
determined by the Court, and that the "purported ratification of
the Proposed Constitution ... based on the referendum among
Citizens' Assemblies falls short of being in strict conformity with
the requirements of Article XV of the 1935 Constitution," but that
such unfortunate drawback notwithstanding, "considering all
other related relevant circumstances, ... the new Constitution is
legally recognizable and should be recognized as legitimately in
force."
c. Justice Zaldivar maintains unqualifiedly that the Proposed
Constitution has not been ratified in accordance with Article XV
of the 1935 Constitution, and that, accordingly, it has no force and
effect whatsoever.
d. Justice Antonio feels "that the Court is not competent to act" on
the issue whether the Proposed Constitution has been ratified by
the people or not, "in the absence of any judicially discoverable
and manageable standards," since the issue "poses a question of
fact.
7. On the question whether or not these cases should be dismissed, Justices Makalintal,
Castro, Barredo, Makasiar, Antonio and Esguerra voted in the affirmative, for the
reasons set forth in their respective opinions. Justices Fernando, Teehankee, and the
writer similarly voted, except as regards Case No. L-35948 as to which they voted to
grant to the petitioners therein a reasonable period of time within which to file
appropriate pleadings should they wish to contest the legality of Presidential
Proclamation No. 1102. Justice Zaldivar favors the granting of said period to the

petitioners in said Case No. L-35948 for the aforementioned purpose, but he believes, in
effect, that the Court should go farther and decide on the merits everyone of the cases
under consideration.
Accordingly, the Court acting in conformity with the position taken by six (6) of its members, 1 with three
(3) members dissenting, 2 with respect to G.R. No. L-35948, only and another member 3 dissenting, as regards
all of the cases dismissed the same, without special pronouncement as to costs.
The Present Cases
Prior thereto, or on January 20, 1973, Josue Javellana filed Case G.R. No. L-36142 against the Executive
Secretary and the Secretaries of National Defense, Justice and Finance, to restrain said respondents "and their
subordinates or agents from implementing any of the provisions of the propose Constitution not found in the
present Constitution" referring to that of 1935. The petition therein, filed by Josue Javellana, as a "Filipino
citizen, and a qualified and registered voter" and as "a class suit, for himself, and in behalf of all citizens and
voters similarly situated," was amended on or about January 24, 1973. After reciting in substance the facts set
forth in the decision in the plebiscite cases, Javellana alleged that the President had announced "the immediate
implementation of the New Constitution, thru his Cabinet, respondents including," and that the latter "are
acting without, or in excess of jurisdiction in implementing the said proposed Constitution" upon the ground:
"that the President, as Commander-in-Chief of the Armed Forces of the Philippines, is without authority to
create the Citizens Assemblies"; that the same "are without power to approve the proposed Constitution ...";
"that the President is without power to proclaim the ratification by the Filipino people of the proposed
Constitution"; and "that the election held to ratify the proposed Constitution was not a free election, hence null
and void."
Similar actions were filed, on January 23, 1973, by Vidal Tan, J. Antonio Araneta, Alejandro Roces, Manuel
Crudo, Antonio U. Miranda, Emilio de Peralta and Lorenzo M. Taada, against the Executive Secretary, the
Secretaries of Finance, Justice, Land Reform, and National Defense, the Auditor General, the Budget
Commissioner, the Chairman of the Presidential Commission on Reorganization, the Treasurer of the
Philippines, the Commission on Elections and the Commissioner of Civil Service 4 on February 3, 1973, by
Eddie Monteclaro, personally and as President of the National Press Club of the Philippines, against the
Executive Secretary, the Secretary of Public Information, the Auditor General, the Budget Commissioner and
the National Treasurer 5 and on February 12, 1973, by Napoleon V. Dilag, Alfredo Salapantan, Jr., Leonardo
Asodisen, Jr. and Raul M. Gonzales, 6 against the Executive Secretary, the Secretary of National Defense, the
Budget Commissioner and the Auditor General.
Likewise, on January 23, 1973, Gerardo Roxas, Ambrosio Padilla, Jovito R. Salonga, Salvador H.
Laurel, 7 Ramon V. Mitra, Jr. and Eva Estrada-Kalaw, the first as "duly elected Senator and Minority Floor
Leader of the Senate," and others as "duly elected members" thereof, filed Case G.R. No. L-36165, against the
Executive Secretary, the Secretary National Defense, the Chief of Staff of the Armed Forces of the Philippines,
the Secretary of General Services, the President and the President Pro Tempore of the Senate. In their petition
as amended on January 26, 1973 petitioners Gerardo Roxas, et al. allege, inter alia, that the term of
office of three of the aforementioned petitioners 8 would expire on December 31, 1975, and that of the
others 9 on December 31, 1977; that pursuant to our 1935 Constitution, "which is still in force Congress of the
Philippines "must convene for its 8th Session on Monday, January 22, 1973, at 10:00 A.M., which is regular
customary hour of its opening session"; that "on said day, from 10:00 A.M. up to the afternoon," said petitioner
"along with their other colleagues, were unlawfully prevented from using the Senate Session Hall, the same
having been closed by the authorities in physical possession and control the Legislative Building"; that "(a)t
about 5:00 to 6:00 P.M. the said day, the premises of the entire Legislative Building were ordered cleared by
the same authorities, and no one was allowed to enter and have access to said premises"; that "(r)espondent
Senate President Gil J. Puyat and, in his absence, respondent President Pro Tempore Jose Roy we asked by
petitioning Senators to perform their duties under the law and the Rules of the Senate, but unlawfully refrained
and continue to refrain from doing so"; that the petitioners ready and willing to perform their duties as duly

63

elected members of the Senate of the Philippines," but respondent Secretary of National Defense, Executive
Secretary and Chief of Staff, "through their agents and representatives, are preventing petitioners from
performing their duties as duly elected Senators of the Philippines"; that "the Senate premise in the Congress
of the Philippines Building ... are occupied by and are under the physical control of the elements military
organizations under the direction of said respondents"; that, as per "official reports, the Department of General
Services ... is now the civilian agency in custody of the premises of the Legislative Building"; that respondents
"have unlawfully excluded and prevented, and continue to so exclude and prevent" the petitioners "from the
performance of their sworn duties, invoking the alleged approval of the 1972 (1973) Constitution of the
Philippines by action of the so-called Citizens' Assemblies on January 10, 1973 to January 15, 1973, as stated
in and by virtue of Proclamation No. 1102 signed and issued by the President of the Philippines"; that "the
alleged creation of the Citizens' Assemblies as instrumentalities for the ratification of the Constitution of the
Republic of the Philippines" is inherently illegal and palpably unconstitutional; that respondents Senate
President and Senate President Pro Tempore "have unlawfully refrained and continue to refrain from and/or
unlawfully neglected and continue to neglect the performance of their duties and functions as such officers
under the law and the Rules of the Senate" quoted in the petition; that because of events supervening the
institution of the plebiscite cases, to which reference has been made in the preceding pages, the Supreme Court
dismissed said cases on January 22, 1973, by a majority vote, upon the ground that the petitions therein had
become moot and academic; that the alleged ratification of the 1972 (1973) Constitution "is illegal,
unconstitutional and void and ... can not have superseded and revoked the 1935 Constitution," for the reasons
specified in the petition as amended; that, by acting as they did, the respondents and their "agents,
representatives and subordinates ...have excluded the petitioners from an office to which" they "are lawfully
entitled"; that "respondents Gil J. Puyat and Jose Roy have unlawfully refrained from convening the Senate for
its 8th session, assuming general jurisdiction over the Session Hall and the premises of the Senate and ...
continue such inaction up to this time and ... a writ of mandamus is warranted in order to compel them to
comply with the duties and functions specifically enjoined by law"; and that "against the above mentioned
unlawful acts of the respondents, the petitioners have no appeal nor other speedy and adequate remedy in the
ordinary course of law except by invoking the equitable remedies of mandamus and prohibition with the
provisional remedy of preliminary mandatory injunction."
Premised upon the foregoing allegations, said petitioners prayed that, "pending hearing on the merits, a writ of
preliminary mandatory injunction be issued ordering respondents Executive Secretary, the Secretary of
National Defense, the Chief of Staff of the Armed Forces of the Philippines, and the ... Secretary of General
Service, as well as all their agents, representatives and subordinates to vacate the premises of the Senate of the
Philippines and to deliver physical possession of the same to the President of the Senate or his authorized
representative"; and that hearing, judgment be rendered declaring null and Proclamation No. 1102 ... and any
order, decree, proclamation having the same import and objective, issuing writs of prohibition and mandamus,
as prayed for against above-mentioned respondents, and making the writ injunction permanent; and that a writ
of mandamusbe issued against the respondents Gil J. Puyat and Jose Roy directing them to comply with their
duties and functions as President and President Pro Tempore, respectively, of the Senate of Philippines, as
provided by law and the Rules of the Senate."
Required to comment on the above-mentioned petitions and/or amended petitions, respondents filed, with the
leave Court first had and obtained, a consolidated comment on said petitions and/or amended petitions,
alleging that the same ought to have been dismissed outright; controverting petitioners' allegations concerning
the alleged lack impairment of the freedom of the 1971 Constitution Convention to approve the proposed
Constitution, its alleged lack of authority to incorporate certain contested provisions thereof, the alleged lack
of authority of the President to create and establish Citizens' Assemblies "for the purpose submitting to them
the matter of ratification of the new Constitution," the alleged "improper or inadequate submiss of the
proposed constitution," the "procedure for ratification adopted ... through the Citizens Assemblies"; a
maintaining that: 1) "(t)he Court is without jurisdiction to act on these petitions"; 2) the questions raised
therein are "political in character and therefore nonjusticiable"; 3) "there substantial compliance with Article
XV of the 1 Constitution"; 4) "(t)he Constitution was properly submitted the people in a free, orderly and
honest election; 5) "Proclamation No. 1102, certifying the results of the election, is conclusive upon the
courts"; and 6) "(t)he amending process outlined in Article XV of the 1935 Constitution is not exclusive of
other modes of amendment."

Respondents Puyat and Roy, in said Case G.R. No. L-36165, filed their separate comment therein, alleging that
"(t)he subject matter" of said case "is a highly political question which, under the circumstances, this ...Court
would not be in a position to act upon judicially," and that, in view of the opinions expressed by three members
of this Court in its decision in the plebiscite cases, in effect upholding the validity of Proclamation No. 1102,
"further proceedings in this case may only be an academic exercise in futility."
On February 5, 1973, the Court issued a resolution requiring respondents in L-36236 to comment on the
petition therein not later than Saturday, February 10, 1973, and setting the case for hearing on February 12,
1973, at 9:30 a.m. By resolution dated February 7, 1973, this Court resolved to consider the comments of the
respondents in cases G.R. Nos. L-36142, L-36164, and L-36165, as motions to dismiss the petitions therein,
and to set said cases for hearing on the same date and time as L-36236. On that date, the parties in G.R. No. L36283 10 agreed that the same be, likewise, heard, as it was, in fact, heard jointly with the aforementioned cases
G.R. Nos. L-36142, L-36164, L-36165 and L-36236. The hearing, which began on February 12, 1973, shortly
after 9:30 a.m., was continued not only that afternoon, but, also, on February 13, 14, 15 and 16, morning and
afternoon, after which the parties were granted up to February 24, 1973, noon, within which to submit their
notes of oral arguments and additional arguments, as well as the documents required of them or whose
presentation was reserved by them. The same resolution granted the parties until March 1, 1973, to reply to the
notes filed by their respective opponents. Counsel for the petitioners in G.R. Nos. L-36164 and L-36165 filed
their aforementioned notes on February 24, 1973, on which date the Solicitor General sought an extension of
time up to March 3, 1973, within which to file his notes, which was granted, with the understanding that said
notes shall include his reply to the notes already filed by the petitioners in G.R. Nos. L-36164 a L-36165.
Counsel for the petitioners, likewise, moved and were granted an extension of time, to expire on March 10,
1973, within which to file, as they did, their notes in reply to those submitted by the Solicitor General on
March 3, 1973. On March 21, 1973, petitioners in L-36165 filed a "Manifestation a Supplemental Rejoinder,"
whereas the Office of the Solicitor General submitted in all these cases a "Rejoinder Petitioners' Replies."
After deliberating on these cases, the members of the Court agreed that each would write his own opinion and
serve a copy thereof on his colleagues, and this they did. Subsequently, the Court discussed said opinions and
votes were cast thereon. Such individual opinions are appended hereto.
Accordingly, the writer will first express his person opinion on the issues before the Court. After the exposition
his aforesaid opinion, the writer will make, concurrently with his colleagues in the Court, a resume of
summary of the votes cast by them in these cases.
Writer's Personal Opinion
I.
Alleged academic futility of further proceedings in G.R. L-36165.
This defense or theory, set up by counsel for respondents Gil J. Puyat and Jose Roy in G.R. No. L-36165, and,
also, by the Solicitor General, is predicated upon the fact that, in Our decision in the plebiscite cases, Mr.
Justice Barredo had expressed the view that the 1935 Constitution had "pro tanto passed into history" and
"been legitimately supplanted by the Constitution now in force by virtue of Proclamation No. 1102 ..."; that
Mr. Justice Antonio did not feel "that this Court competent to act" in said cases "in the absence of any
judicially discoverable and manageable standards" and because "the access to relevant information is
insufficient to assure the correct determination of the issue," apart from the circumstance that "the new
constitution has been promulgated and great interests have already arisen under it" and that the political organ
of the Government has recognized its provisions; whereas, Mr. Justice Esguerra had postulated that "(w)ithout
any competent evidence ... about the circumstances attending the holding" of the "referendum or plebiscite"
thru the Citizens' Assemblies, he "cannot say that it was not lawfully held" and that, accordingly,
he assumed "that what the proclamation (No. 1102) says on its face is true and until overcome by satisfactory

64

evidence" he could not "subscribe to the claim that such plebiscite was not held accordingly"; and that he
accepted "as a fait accompli that the Constitution adopted (by the 1971 Constitutional Convention) on
November 30, 1972, has been duly ratified.

Administrative acts and commands of the (Governor-General) President of the


Philippines touching the organization or mode of operation of the Government or
rearranging or readjusting any of the districts, divisions, parts or ports of the (Philippine
Islands) Philippines and all acts and commands governing the general performance of
duties by public employees or disposing of issues of general concern shall be made
effective in executive orders.

Counsel for respondents Gil J. Puyat and Jose Roy goes on to say that, under these circumstances, "it seems
remote or improbable that the necessary eight (8) votes under the 1935 Constitution, and much less the ten (10)
votes required by the 1972 (1973) Constitution, can be obtained for the relief sought in the Amended Petition"
in G.R. No.
L-36165.
I am unable to share this view. To begin with, Mr. Justice Barredo announced publicly, in open court, during
the hearing of these cases, that he was and is willing to be convinced that his aforementioned opinion in the
plebiscite cases should be reconsidered and changed. In effect, he thus declared that he had an open mind in
connection with the cases at bar, and that in deciding the same he would not necessarily adhere to said opinion
if the petitioners herein succeeded in convincing him that their view should be sustained.
Secondly, counsel for the aforesaid respondents had apparently assumed that, under the 1935 Constitution,
eight (8) votes are necessary to declare invalid the contested Proclamation No. 1102. I do not believe that this
assumption is borne out by any provision of said Constitution. Section 10 of Article VIII thereof reads:
All cases involving the constitutionality of a treaty or law shall be heard and decided by
the Supreme Court in banc, and no treaty or law may be declared unconstitutional
without the concurrence of two thirds of all the members of the Court.
Pursuant to this section, the concurrence of two-thirds of all the Members of the Supreme Court is required
only to declare "treaty or law" unconstitutional. Construing said provision, in a resolution dated September 16,
1949, then Chief Justice Moran, voicing the unanimous view of the Members of this Court, postulated:

Executive orders fixing the dates when specific laws, resolutions, or orders are to have
or cease to (have) effect and any information concerning matters of public
moment determined by law, resolution, or executive orders, may be promulgated in an
executive proclamation, with all the force of an executive order. 14
In fact, while executive order embody administrative acts or commands of the President, executive
proclamations are mainly informative and declaratory in character, and so does counsel for respondents Gil J.
Puyat and Jose Roy maintain in G.R. No.
L-36165. 15 As consequence, an executive proclamation has no more than "the force of an executive order," so
that, for the Supreme Court to declare such proclamation unconstitutional, under the 1935 Constitution, the
same number of votes needed to invalidate an executive order, rule or regulation namely, six (6) votes
would suffice.
As regards the applicability of the provisions of the proposed new Constitution, approved by the 1971
Constitutional Convention, in the determination of the question whether or not it is now in force, it is obvious
that such question depends upon whether or not the said new Constitution has been ratified in accordance with
the requirements of the 1935 Constitution, upon the authority of which said Constitutional Convention was
called and approved the proposed Constitution. It is well settled that the matter of ratification of an amendment
to the Constitution should be settled by applying the provisions of the Constitution in force at the time of the
alleged ratification, or the old Constitution. 16
II

... There is nothing either in the Constitution or in the Judiciary Act requiring the vote of
eight Justices to nullify a rule or regulation or an executive order issued by the
President. It is very significant that in the previous drafts of section 10, Article VIII of
the Constitution, "executive order" and "regulation"were included among those that
required for their nullification the vote of two-thirds of all the members of the Court.
But "executive order" and "regulation" were later deleted from the final draft (Aruego,
The Framing of the Philippine Constitution, Vol. I, pp. 495, 496), and thus a mere
majority of six members of this Court is enough to nullify them. 11
The distinction is not without reasonable foundation. The two thirds vote (eight [8] votes) requirement, indeed,
was made to apply only to treaty and law, because, in these cases, the participation of the two other
departments of the government the Executive and the Legislative is present, which circumstance is
absent in the case of rules, regulations and executive orders. Indeed, a law (statute) passed by Congress is
subject to the approval or veto of the President, whose disapproval cannot be overridden except by the vote of
two-thirds (2/3) of all members of each House of Congress. 12 A treaty is entered into by the President with the
concurrence of the Senate,13 which is not required in the case of rules, regulations or executive orders which
are exclusive acts of the President. Hence, to nullify the same, a lesser number of votes is necessary in the
Supreme Court than that required to invalidate a law or treaty.
Although the foregoing refers to rules, regulations and executive orders issued by the President, the dictum
applies with equal force to executive proclamation, like said Proclamation No. 1102, inasmuch as the authority
to issue the same is governed by section 63 of the Revised Administrative Code, which provides:

Does the issue on the validity of Proclamation No. 1102 partake of the nature of a political, and, hence, nonjusticiable question?
The Solicitor General maintains in his comment the affirmative view and this is his main defense. In support
thereof, he alleges that "petitioners would have this Court declare as invalid the New Constitution of the
Republic" from which he claims "this Court now derives its authority"; that "nearly 15 million of our
body politic from the age of 15 years have mandated this Constitution to be the New Constitution and the
prospect of unsettling acts done in reliance on it caution against interposition of the power of judicial review";
that "in the case of the New Constitution, the government has been recognized in accordance with the New
Constitution"; that "the country's foreign relations are now being conducted in accordance with the new
charter"; that "foreign governments have taken note of it"; that the "plebiscite cases" are "not precedents for
holding questions regarding proposal and ratification justiciable"; and that "to abstain from judgment on the
ultimate issue of constitutionality is not to abdicate duty."
At the outset, it is obvious to me that We are not being asked to "declare" the new Constitution invalid. What
petitioners dispute is the theory that it has been validly ratified by the people, especially that they have done
so in accordance with Article XV of the 1935 Constitution. The petitioners maintain that the conclusion reached
by the Chief Executive in the dispositive portion of Proclamation No. 1102 is not borne out by the whereases
preceding the same, as the predicates from which said conclusion was drawn; that the plebiscite or "election"
required in said Article XV has not been held; that the Chief Executive has no authority, under the 1935
Constitution, to dispense with said election or plebiscite; that the proceedings before the Citizens' Assemblies
did not constitute and may not be considered as such plebiscite; that the facts of record abundantly show that

65

the aforementioned Assemblies could not have been held throughout the Philippines from January 10 to
January 15, 1973; and that, in any event, the proceedings in said Assemblies are null and void as an alleged
ratification of the new Constitution proposed by the 1971 Constitutional Convention, not only because of the
circumstances under which said Assemblies had been created and held, but, also, because persons disqualified
to vote under Article V of the Constitution were allowed to participate therein, because the provisions of our
Election Code were not observed in said Assemblies, because the same were not held under the supervision of
the Commission on Elections, in violation of section 2 of Article X of the 1935 Constitution, and because the
existence of Martial Law and General Order No. 20, withdrawing or suspending the limited freedom to discuss
the merits and demerits of said proposed Constitution, impaired the people's freedom in voting thereon,
particularly a viva voce, as it was done in many instances, as well as their ability to have a reasonable
knowledge of the contents of the document on which they were allegedly called upon to express their views.
Referring now more specifically to the issue on whether the new Constitution proposed by the 1971
Constitutional Convention has been ratified in accordance with the provisions of Article XV of the 1935
Constitution is a political question or not, I do not hesitate to state that the answer must be in the negative.
Indeed, such is the position taken by this Court, 17 in an endless line of decisions, too long to leave any room
for possible doubt that said issue is inherently and essentially justiciable. Such, also, has been the consistent
position of the courts of the United States of America, whose decisions have a persuasive effect in this
jurisdiction, our constitutional system in the 1935 Constitution being patterned after that of the United States.
Besides, no plausible reason has, to my mind, been advanced to warrant a departure from said position,
consistently with the form of government established under said Constitution..
Thus, in the aforementioned plebiscite cases, 18 We rejected the theory of the respondents therein that the
question whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the
ratification or rejection of the proposed new Constitution, was valid or not, was not a proper subject of judicial
inquiry because, they claimed, it partook of a political nature, and We unanimously declared that the issue was
a justiciable one. With identical unanimity, We overruled the respondents' contention in the 1971 habeas
corpus cases, 19 questioning Our authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite
the opposite view taken by this Court in Barcelona v. Baker 20 and Montenegro v. Castaeda, 21insofar as it
adhered to the former case, which view We, accordingly, abandoned and refused to apply. For the same reason,
We did not apply and expressly modified, in Gonzales v. Commission on Elections, 22 the political-question
theory adopted in Mabanag v. Lopez Vito. 23 Hence, respondents herein urge Us to reconsider the action thus
taken by the Court and to revert to and follow the views expressed in Barcelon v. Baker and Mabanag v. Lopez
Vito. 24
The reasons adduced in support thereof are, however, substantially the same as those given in support of the
political-question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered
by this Court and found by it to be legally unsound and constitutionally untenable. As a consequence, Our
decision in the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis, which
gained added weight by its virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are justiciable, not political,
is plain and simple. One of the principal bases of the non-justiciability of so-called political questions is the
principle of separation of powers characteristic of the Presidential system of government the functions of
which are classified or divided, by reason of their nature, into three (3) categories, namely: 1) those involving
the making of laws, which are allocated to the legislative department; 2) those concerned mainly with the
enforcement of such laws and of judicial decisions applying and/or interpreting the same, which belong to the
executive department; and 3) those dealing with the settlement of disputes, controversies or conflicts involving
rights, duties or prerogatives that are legally demandable and enforceable, which are apportioned to courts of
justice. Within its own sphere but only within such sphere each department is supreme and independent
of the others, and each is devoid of authority, not only to encroach upon the powers or field of action assigned
to any of the other departments, but, also, to inquire into or pass upon the advisability or wisdom of the acts

performed, measures taken or decisions made by the other departments provided that such acts, measures or
decisions are withinthe area allocated thereto by the Constitution. 25
This principle of separation of powers under the presidential system goes hand in hand with the system of
checks and balances, under which each department is vested by the Fundamental Law with some powers to
forestall, restrain or arrest a possible or actual misuse or abuse of powers by the other departments. Hence, the
appointing power of the Executive, his pardoning power, his veto power, his authority to call the Legislature or
Congress to special sessions and even to prescribe or limit the object or objects of legislation that may be taken
up in such sessions, etc. Conversely, Congress or an agency or arm thereof such as the commission on
Appointments may approve or disapprove some appointments made by the President. It, also, has the power
of appropriation, to "define, prescribe, and apportion the jurisdiction of the various courts," as well as that of
impeachment. Upon the other hand, under the judicial power vested by the Constitution, the "Supreme Court
and ... such inferior courts as may be established by law," may settle or decide with finality, not only justiciable
controversies between private individuals or entities, but, also, disputes or conflicts between a private
individual or entity, on the one hand, and an officer or branch of the government, on the other, or between two
(2) officers or branches of service, when the latter officer or branch is charged with acting without jurisdiction
or in excess thereof or in violation of law. And so, when a power vested in said officer or branch of the
government is absolute orunqualified, the acts in the exercise of such power are said to be political in nature,
and, consequently, non-justiciable or beyond judicial review. Otherwise, courts of justice would be arrogating
upon themselves a power conferred by the Constitution upon another branch of the service to the exclusion of
the others. Hence, in Taada v. Cuenco, 26 this Court quoted with approval from In re McConaughy, 27 the
following:
"At the threshold of the case we are met with the assertion that the questions involved
are political, and not judicial. If this is correct, the court has no jurisdiction as the
certificate of the state canvassing board would then be final, regardless of the actual vote
upon the amendment. The question thus raised is a fundamental one; but it has been so
often decided contrary to the view contended for by the Attorney General that it would
seem to be finally settled.
xxx xxx xxx
"... What is generally meant, when it is said that a question is political, and not judicial,
is that it is a matter which is to be exercised by the people in their primary political
capacity, or that it has been specifically delegated to some other department or particular
officer of the government, with discretionary power to act. See State vs. Cunningham,
81 Wis. 497, N.W. 724, 15 L.R.A. 561; In re Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19
L.R.A. 519; Green vs. Mills, 69 Fed. 852, 16 C.C.A. 516, 30 L.R.A. 90; Fletcher vs.
Tuttle 151 Ill. 41, 37 N.E. 683, 25 L.R.A. 143, 42 Am. St. Rep. 220. Thus theLegislature
may in its discretion determine whether it will pass law or submit a proposed
constitutional amendment to the people. The courts have no judicial control over such
matters, not merely because they involve political questions, but because they are
matters which the people have by the Constitution delegated to the Legislature. The
Governor may exercise the powers delegated him, free from judicial control, so long as
he observes the laws act within the limits of the power conferred. His discretionary acts
cannot be controllable, not primarily because they are of a politics nature, but because
the Constitution and laws have placed the particular matter under his control.But every
officer under constitutional government must act accordingly to law and subject its
restrictions, and every departure therefrom or disregard thereof must subject him to that
restraining and controlling power of the people, acting through the agency of the
judiciary; for it must be remembered that the people act through courts, as well as
through the executive or the Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. The

66

recognition of this principle, unknown except in Great Britain and America, is


necessary, to "the end that the government may be one of laws and not of men" words
which Webster said were the greatest contained in any written constitutional document."
(Emphasis supplied.)
and, in an attempt to describe the nature of a political question in terms, it was hoped, understandable to the
laymen, We added that "... the term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy" in matters concerning the government of a State, as a body politic. "In
other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the government." It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure."
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the issue on whether or
not the prescribed qualifications or conditions have been met, or the limitations respected, is justiciable or nonpolitical, the crux of the problem being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations particularly those prescribed or imposed by the
Constitution would be set at naught. What is more, the judicial inquiry into such issue and the settlement
thereof are the mainfunctions of courts of justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of its basic predicates. As a consequence, We
have neither the authority nor the discretion to decline passing upon said issue, but are under the ineluctable
obligation made particularly more exacting and peremptory by our oath, as members of the highest Court of
the land, to support and defend the Constitution to settle it. This explains why, in Miller v. Johnson, 28 it was
held that courts have a "duty, rather than a power", to determine whether another branch of the government has
"kept within constitutional limits." Not satisfied with this postulate, the court went farther and stressed that, if
the Constitution provides how it may be amended as it is in our 1935 Constitution "then, unless the
manner is followed, the judiciary as the interpreter of that constitution, will declare the amendment
invalid." 29 In fact, this very Court speaking through Justice Laurel, an outstanding authority on Philippine
Constitutional Law, as well as one of the highly respected and foremost leaders of the Convention that drafted
the 1935 Constitution declared, as early as July 15, 1936, that "(i)n times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, thejudicial department is the only constitutional organ which can be called upon to
determine the proper allocation of powers between the several departments" of the government. 30
31

The Solicitor General has invoked Luther v. Borden in support of his stand that the issue under consideration
is non-justiciable in nature. Neither the factual background of that case nor the action taken therein by the
Federal Supreme Court has any similarity with or bearing on the cases under consideration.
Luther v. Borden was an action for trespass filed by Luther with the Circuit Court of the United States against
Borden and others for having forcibly entered into Luther's house, in Rhode Island, sometime in 1842. The
defendants who were in the military service of said former colony of England, alleged in their defense that
they had acted in obedience to the commands of a superior officer, because Luther and others were engaged in
a conspiracy to overthrow the government by force and the state had been placed by competent authority under
Martial Law. Such authority was the charter government of Rhode Island at the time of the Declaration of
Independence, for unlike other states which adopted a new Constitution upon secession from England
Rhode Island retained its form of government under a British Charter, making only such alterations, by acts of
the Legislature, as were necessary to adapt it to its subsequent condition as an independent state. It was under
this form of government when Rhode Island joined other American states in the Declaration of Independence
and, by subsequently ratifying the Constitution of the United States, became a member of the Union. In 1843,
it adopted a new Constitution.
Prior thereto, however, many citizens had become dissatisfied with the charter government. Memorials
addressed by them to the Legislature having failed to bring about the desired effect, meetings were held and

associations formed by those who belonged to this segment of the population which eventually resulted
in a convention called for the drafting of a new Constitution to be submitted to the people for their adoption or
rejection. The convention was not authorized by any law of the existing government. The delegates to such
convention framed a new Constitution which was submitted to the people. Upon the return of the votes cast by
them, the convention declared that said Constitution had been adopted and ratified by a majority of the people
and became the paramount law and Constitution of Rhode Island.
The charter government, which was supported by a large number of citizens of the state, contested, however,
the validity of said proceedings. This notwithstanding, one Thomas W. Dorr, who had been elected governor
under the new Constitution of the rebels, prepared to assert authority by force of arms, and many citizens
assembled to support him. Thereupon, the charter government passed an Act declaring the state under Martial
Law and adopted measures to repel the threatened attack and subdue the rebels. This was the state of affairs
when the defendants, who were in the military service of the charter government and were to arrest Luther, for
engaging in the support of the rebel government which was never able to exercise any authority in the state
broke into his house.
Meanwhile, the charter government had taken measures to call its own convention to revise the existing form
of government. Eventually, a new constitution was drafted by a convention held under the authority of the
charter government, and thereafter was adopted and ratified by the people. "(T)he times and places at which
the votes were to be given, the persons who were to receive and return them, and the qualifications of the
voters having all been previously authorized and provided for by law passed by the charter government," the
latter formally surrendered all of its powers to the new government, established under its authority, in May
1843, which had been in operation uninterruptedly since then.
About a year before, or in May 1842, Dorr, at the head of a military force, had made an unsuccessful attempt to
take possession of the state arsenal in Providence, but he was repulsed, and, after an "assemblage of some
hundreds of armed men under his command at Chepatchet in the June following, which dispersed upon
approach of the troops of the old government, no further effort was made to establish" his government. "...
until the Constitution of 1843" adopted under the auspices of the charter government "went into
operation, the charter government continued to assert its authority and exercise its powers and to enforce
obedience throughout the state ... ."
Having offered to introduce evidence to prove that the constitution of the rebels had been ratified by the
majority of the people, which the Circuit Court rejected, apart from rendering judgment for the defendants, the
plaintiff took the case for review to the Federal Supreme Court which affirmed the action of the Circuit Court,
stating:
It is worthy of remark, however, when we are referring to the authority of State
decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went
into operation. The judges who decided that case held their authority under that
constitution and it is admitted on all hands that it was adopted by the people of the
State, and is the lawful and established government. It is the decision, therefore, of a
State court, whose judicial authority to decide upon the constitution and laws of Rhode
Island is not questioned by either party to this controversy, although the government
under which it acted was framed and adopted under the sanction and laws of the charter
government.
The point, then, raised here has been already decided by the courts of Rhode Island. The
question relates, altogether, to the constitution and laws of that State, and the well
settled rule in this court is, that the courts of the United States adopt and follow the
decisions of the State courts in questions which concern merely the constitution and
laws of the State.

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Upon what ground could the Circuit Court of the United States which tried this case
have departed from this rule, and disregarded and overruled the decisions of the courts
of Rhode Island?Undoubtedly the courts of the United States have certain powers under
the Constitution and laws of the United States which do not belong to the State courts.
But the power of determining that a State government has been lawfully established,
which the courts of the State disown and repudiate, is not one of them. Upon such a
question the courts of the United States are bound to follow the decisions of the State
tribunals, and must therefore regard the charter government as the lawful and
established government during the time of this contest. 32
It is thus apparent that the context within which the case of Luther v. Borden was decided is basically and
fundamentally different from that of the cases at bar. To begin with, the case did not involve a federal question,
but one purely municipal in nature. Hence, the Federal Supreme Court was "bound to follow the decisions of
the State tribunals" of Rhode Island upholding the constitution adopted under the authority of the charter
government. Whatever else was said in that case constitutes, therefore, an obiter dictum. Besides, no decision
analogous to that rendered by the State Court of Rhode Island exists in the cases at bar. Secondly, the states of
the Union have a measure of internal sovereignty upon which the Federal Government may not encroach,
whereas ours is a unitary form of government, under which our local governments derive their authority from
the national government. Again, unlike our 1935 Constitution, the charter or organic law of Rhode Island
contained noprovision on the manner, procedure or conditions for its amendment.
Then, too, the case of Luther v. Borden hinged more on the question of recognition of government, than on
recognition of constitution, and there is a fundamental difference between these two (2) types of recognition,
the first being generally conceded to be a political question, whereas the nature of the latter depends upon a
number of factors, one of them being whether the new Constitution has been adopted in the manner prescribed
in the Constitution in force at the time of the purported ratification of the former, which
is essentially a justiciablequestion. There was, in Luther v. Borden, a conflict
between two (2) rival governments, antagonistic to each other, which is absent in the present cases. Here, the
Government established under the 1935 Constitution is the very same government whose Executive
Department has urged the adoption of the new or revised Constitution proposed by the 1971 Constitutional
Convention and now alleges that it has been ratified by the people.
In short, the views expressed by the Federal Supreme Court in Luther v. Borden, decided in 1849, on
mattersother than those referring to its power to review decisions of a state court concerning the constitution
and government of that state, not the Federal Constitution or Government, are manifestly neither, controlling,
nor even persuasive in the present cases, having as the Federal Supreme Court admitted no authority
whatsoever to pass upon such matters or to review decisions of said state court thereon. In fact, referring to
that case, the Supreme Court of Minnessota had the following to say:
Luther v. Borden, 7 How. 1, 12 L. Ed. 581, is always cited by those who assert that the
courts have no power to determine questions of a political character. It is interesting
historically, but it has not the slightest application to the case at bar. When carefully
analyzed, it appears that it merely determines that the federal courts will accept as final
and controlling a decision of the highest court of a state upon a question of the
construction of the Constitution of the state. ... . 33
Baker v. Carr, 34 cited by respondents, involved an action to annul a Tennessee statute apportioning the seats in
the General Assembly among the counties of the State, upon the theory that the legislation violated the equal
protection clause. A district court dismissed the case upon the ground, among others, that the issue was a
political one, but, after a painstaking review of the jurisprudence on the matter, the Federal Supreme
Court reversed the appealed decision and held that said issue was justiciable and non-political, inasmuch as:"...
(d)eciding whether a matter has in any measure been committed by the Constitution to another branch of
government, or whether the action of that branch exceeds whatever authority has been committed, is itself a

delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution ... ."
Similarly, in Powell v. McCormack, 35 the same Court, speaking through then Chief Justice Warren, reversed a
decision of the Court of Appeals of New York affirming that of a Federal District Court, dismissing Powell's
action for a declaratory judgment declaring thereunder that he whose qualifications were uncontested
had been unlawfully excluded from the 90th Congress of the U.S. Said dismissal was predicated upon the
ground, inter alia, that the issue was political, but the Federal Supreme Court held that it was clearly a
justiciable one.
The Supreme Court of Minnessota undertook a careful review of American jurisprudence on the matter. Owing
to the lucidity of its appraisal thereof, We append the same to this opinion as Annex A thereof.
After an, exhaustive analysis of the cases on this subject, the Court concluded:
The authorities are thus practically uniform in holding that whether a constitutional
amendment has been properly adopted according to the requirements of an existing
Constitution is a judicial question. There can be little doubt that the consensus of
judicial opinion is to the effect that it is the absolute duty of the judiciary to determine
whether the Constitution has been amended in the manner required by the Constitution,
unless a special tribunal has been created to determine the question; and even then many
of the courts hold that the tribunal cannot be permitted to illegally amend the organic
law. ... . 36
In the light of the foregoing, and considering that Art. XV of our 1935 Constitution prescribes the method or
procedure for its amendment, it is clear to my mind that the question whether or not the revised Constitution
drafted by the 1971 Constitutional Convention has been ratified in accordance with said Art. XV is a
justiciable one and non-political in nature, and that it is not only subject to judicial inquiry, but, also, that it is
the Court's boundenduty to decide such question.
The Supreme Court of the United States has meaningfully postulated that "the courts cannot reject as 'no law
suit' " because it allegedly involves a political question "a bona fide controversy as to whether some
action denominated "political" exceeds constitutional authority." 37
III
Has the proposed new or revised Constitution been ratified conformably to said Art. XV of the 1935
Constitution?
Petitioners in L-36142 maintain the negative view, upon ground: 1) that the President "is without authority to
create the Citizens' Assemblies" through which, respondents maintain, the proposed new Constitution has been
ratified; that said Assemblies "are without power to approve the proposed Constitution"; 3) that the President
"is without power to proclaim the ratification by the Filipino people of the proposed Constitution"; and 4) that
"the election held (in the Citizens' Assemblies) to ratify the proposed Constitution was not a free election,
hence null and void."
Apart from substantially reiterating these grounds support of said negative view, the petitioners in L-36164
contend: 1) that the President "has no power to call a plebiscite for the ratification or rejection" of the proposed
new Constitution or "to appropriate funds for the holding of the said plebiscite"; 2) that the proposed new or
revised Constitution "is vague and incomplete," as well as "contains provisions which are beyond the powers
of the 1971 Convention to enact," thereby rendering it "unfit for ... submission the people;" 3) that "(t)he

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period of time between November 1972 when the 1972 draft was approved and January 11-15, 1973," when
the Citizens' Assemblies supposedly ratified said draft, "was too short, worse still, there was practically no
time for the Citizens' Assemblies to discuss the merits of the Constitution which the majority of them have not
read a which they never knew would be submitted to them ratification until they were asked the question
"do you approve of the New Constitution?" during the said days of the voting"; and that "(t)here was altogether
no freedom discussion and no opportunity to concentrate on the matter submitted to them when the 1972 draft
was supposedly submitted to the Citizens' Assemblies for ratification."
Petitioner in L-36236 added, as arguments in support of the negative view, that : 1) "(w)ith a governmentcontrolled press, there can never be a fair and proper submission of the proposed Constitution to the people";
and 2) Proclamation No. 1102 is null and void "(i)nasmuch as the ratification process" prescribed "in the 1935
Constitution was not followed."
Besides adopting substantially some of the grounds relied upon by the petitioners in the above-mentioned
cases, the petitioners in L-36283 argue that "(t)he creation of the Citizens' Assemblies as the vehicle for the
ratification of the Constitution was a deception upon the people since the President announced the
postponement of the January 15, 1973 plebiscite to either February 19 or March 5, 1973." 38
The reasons adduced by the petitioners in L-36165 in favor of the negative view have already been set forth
earlier in this opinion. Hence, it is unnecessary to reproduce them here. So it is, with respect to the positions
taken in L-36165 by counsel for therein respondents Gil J. Puyat and Jose Roy although more will be said
later about them and by the Solicitor General, on behalf of the other respondents in that case and the
respondents in the other cases.

wherein they propose to vote for at least six months preceding the election. The National
Assembly shall extend the right of suffrage to women, if in a plebiscite which shall be
held for that purpose within two years after the adoption of this Constitution, not less
than three hundred thousand women possessing the necessary qualifications shall vote
affirmatively on the question.
Sections 1 and 2 of Art. X of the Constitution ordain in part:
Section 1. There shall be an independent Commission on Elections composed of a
Chairman and two other Members to be appointed by the President with the consent of
the Commission on Appointments, who shall hold office for a term of nine years and
may not be reappointed. ...
xxx xxx xxx
Sec. 2. The Commission on Elections shall have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections and shall exercise all
other functions which may be conferred upon it by law. It shall decide, save those
involving the right to vote, alladministrative questions, affecting elections, including the
determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials. All law enforcement agencies and
instrumentalities of the Government, when so required by the Commission, shall act as
its deputies for the purpose of insuring fee, orderly, and honest elections. The decisions,
orders, and rulings of the Commission shall be subject to review by the Supreme Court.

1. What is the procedure prescribed by the 1935 Constitution for its amendment?
xxx xxx xxx 39
Under section 1 of Art. XV of said Constitution, three (3) steps are essential, namely:
a. Who may vote in a plebiscite under Art. V of the Constitution?
1. That the amendments to the Constitution be proposed either by Congress or by a convention called for that
purpose, "by a vote of three-fourths of all the Members of the Senate and the House of Representatives voting
separately," but "in joint session assembled";
2. That such amendments be "submitted to the people for their ratification" at an "election"; and
3. That such amendments be "approved by a majority of the votes cast" in said election.
Compliance with the first requirement is virtually conceded, although the petitioners in L-36164 question the
authority of the 1971 Constitutional Convention to incorporate certain provisions into the draft of the new or
revised Constitution. The main issue in these five (5) cases hinges, therefore, on whether or not the last two (2)
requirements have been complied with.
2. Has the contested draft of the new or revised Constitution been submitted to the people for their ratification
conformably to Art. XV of the Constitution?
In this connection, other provisions of the 1935 Constitution concerning "elections" must, also, be taken into
account, namely, section I of Art. V and Art. X of said Constitution. The former reads:
Section 1. Suffrage may be exercised by male citizens of the Philippines not otherwise
disqualified by law, who are twenty-one years of age or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality

Petitioners maintain that section 1 of Art. V of the Constitution is a limitation upon the exercise of the right of
suffrage. They claim that no other persons than "citizens of the Philippines not otherwise disqualified by law,
who are twenty-one years of age or over and are able to read and write, and who shall have resided in the
Philippines for one year and in the municipality wherein they propose to vote for at least six months preceding
the election," may exercise the right of suffrage in the Philippines. Upon the other hand, the Solicitor General
contends that said provision merely guarantees the right of suffrage to persons possessing the aforementioned
qualifications and none of the disqualifications, prescribed by law, and that said right may be vested by
competent authorities in persons lacking some or all of the aforementioned qualifications, and possessing some
of the aforesaid disqualifications. In support of this view, he invokes the permissive nature of the language
"(s)uffrage may be exercised" used in section 1 of Art. V of the Constitution, and the provisions of the
Revised Barrio Charter, Republic Act No. 3590, particularly sections 4 and 6 thereof, providing that citizens of
the Philippines "eighteen years of age or over," who are registered in the list of barrio assembly members, shall
be members thereof and may participate as such in the plebiscites prescribed in said Act.
I cannot accept the Solicitor General's theory. Art. V of the Constitution declares who may exercise the right of
suffrage, so that those lacking the qualifications therein prescribed may not exercise such right. This view is
borne out by the records of the Constitutional Convention that drafted the 1935 Constitution. Indeed, section 1
of Art. V of the 1935 Constitution was largely based on the report of the committee on suffrage of the
Convention that drafted said Constitution which report was, in turn, "strongly influenced by the election laws
then in force in the Philippines ... ." 40 " Said committee had recommended: 1) "That the right of suffrage
should exercised only by male citizens of the Philippines." 2) "That should be limited to those who could read
and write." 3) "That the duty to vote should be made obligatory." It appears that the first recommendation was
discussed extensively in the Convention, and that, by way of compromise, it was eventually agreed to include,

69

in section 1 of Art. V of the Constitution, the second sentence thereof imposing upon the National Assembly
established by the original Constitution instead of the bicameral Congress subsequently created by
amendment said Constitution the duty to "extend the right of suffrage women, if in a plebiscite to, be held
for that purpose within two years after the adoption of this Constitution, not less than three hundred thousand
women possessing the necessary qualifications shall vote affirmatively on the question." 41
The third recommendation on "compulsory" voting was, also debated upon rather extensively, after which it
was rejected by the Convention. 42 This accounts, in my opinion, for the permissive language used in the first
sentence of said Art. V. Despite some debates on the age qualification amendment having been proposed to
reduce the same to 18 or 20, which were rejected, and the residence qualification, as well as the
disqualifications to the exercise of the right of suffrage the second recommendation limiting the right of
suffrage to those who could "read and write" was in the language of Dr. Jose M. Aruego, one of the
Delegates to said Convention "readily approved in the Convention without any dissenting vote," although
there was some debate on whether the Fundamental Law should specify the language or dialect that the voter
could read and write, which was decided in the negative. 43
What is relevant to the issue before Us is the fact that the constitutional provision under consideration was
meant to be and is a grant or conferment of a right to persons possessing the qualifications and none of the
disqualifications therein mentioned, which in turn, constitute a limitation of or restriction to said right, and
cannot, accordingly, be dispensed with, except by constitutional amendment. Obviously, every such
constitutional grant or conferment of a right is necessarily a negation of the authority of Congress or of any
other branch of the Government to deny said right to the subject of the grant and, in this sense only, may the
same partake of the nature of a guarantee. But, this does not imply not even remotely, that the Fundamental
Law allows Congress or anybody else to vest in those lacking the qualifications and having the
disqualifications mentioned in the Constitution the right of suffrage.
At this juncture, it is noteworthy that the committee on suffrage responsible for the adoption of section 1 of
Art. V of the Constitution was "strongly influenced by the election laws then in force in the Philippines." Our
first Election Law was Act 1582, passed on January 9, 1907, which was partly amended by Acts 1669, 1709,
1726 and 1768, and incorporated into the Administrative Code of 1916 Act 2657 as chapter 20 thereof,
and then in the Administrative Code of 1917 Act 2711 as chapter 18 thereof, which, in turn, was
amended by Act 3387, approved on December 3, 1927. Sections 431 and 432 of said Code of 1917,
prescribing, respectively, the qualifications for and disqualifications from voting, are quoted below. 44 In all of
these legislative acts, the provisions concerning the qualifications of voters partook of the nature of a grant or
recognition of the right of suffrage, and, hence, of adenial thereof to those who lacked the requisite
qualification and possessed any of the statutory disqualifications. In short, the history of section 1, Art. V of
the Constitution, shows beyond doubt than the same conferred not guaranteed the authority to persons
having the qualifications prescribed therein and none of disqualifications to be specified in ordinary laws and,
necessary implication, denied such right to those lacking any said qualifications, or having any of the
aforementioned disqualifications.
This view is further bolstered by the fact that the 1971 Constitutional Convention sought the submission to a
plebiscite of a "partial amendment" to said section 1 of Art. V of the 1935 Constitution, by reducing the voting
age from twenty-one (21) years to eighteen (18) years, which, however, did not materialize on account of the
decision of this Court in Tolentino v. Commission on Elections, 45 granting the writs, of prohibition and
injunction therein applied for, upon the ground that, under the Constitution, all of the amendments adopted by
the Convention should be submitted in "an election" or a single election, not separately or in several or distinct
elections, and that the proposed amendment sought to be submitted to a plebiscite was not even a
complete amendment, but a "partial amendment" of said section 1, which could be amended further, after its
ratification, had the same taken place, so that the aforementioned partial amendment was, for legal purposes,
no more than a provisional or temporary amendment. Said partial amendment was predicated upon the
generally accepted contemporary construction that, under the 1935 Constitution, persons below twenty-one
(21) years of age could not exercise the right of suffrage, without a previous amendment of the Constitution.

Upon the other hand, the question, whether 18-year-old members of barrio assemblies may vote in barrio
assembly plebiscites is, to say the least, a debatable one. Indeed, there seems to be a conflict between the last
paragraph of said section 6 of Rep. Act No. 3590, 46 pursuant to which the "majority vote of all the barrio
assemblymembers" (which include all barrio residents 18 years of age or over, duly registered in the list of
barrio assembly members) is necessary for the approval, in an assembly plebiscite, of "any budgetary,
supplemental appropriations or special tax ordinances," whereas, according to the paragraph preceding the
penultimate one of said section, 47 "(a)ll duly registered barrio assembly members qualified to vote" who,
pursuant to section 10 of the same Act, must be citizens "of the Philippines, twenty-one years of age or over,
able to read and write," and residents the barrio "during the six months immediately preceding election, duly
registered in the list of voters" and " otherwise disqualified ..." just like the provisions of present and past
election codes of the Philippines and Art. V of the 1935 Constitution "may vote in the plebiscite."
I believe, however, that the apparent conflict should resolved in favor of the 21-year-old members of the
assembly, not only because this interpretation is in accord with Art. V the Constitution, but, also, because
provisions of a Constitution particularly of a written and rigid one, like ours generally accorded a
mandatory status unless the intention to the contrary is manifest, which is not so as regards said Art. V
for otherwise they would not have been considered sufficiently important to be included in the Fundamental
Law of the land. 48Besides, it would be illogical, if not absurd, believe that Republic Act No. 3590 requires, for
the most important measures for which it demands in addition to favorable action of the barrio council
the approval of barrio assembly through aplebiscite, lesser qualifications than those prescribed in dealing with
ordinary measures for which such plebiscite need not be held.
It is similarly inconceivable that those who drafted the 1935 Constitution intended section 1 of Art. V thereof
to apply only to elections of public officers, not to plebiscites for the ratification of amendments to the
Fundamental Law or revision thereof, or of an entirely new Constitution, and permit the legislature to require
lesser qualifications for such ratification, notwithstanding the fact that the object thereof much more important
if not fundamental, such as the basic changes introduced in the draft of the revised Constitution adopted by
the 1971 Constitutional Convention, which a intended to be in force permanently, or, at least, for many
decades, and to affect the way of life of the nation and, accordingly, demands greater experience and
maturity on the part of the electorate than that required for the election of public officers, 49 whose average
term ranges from 2 to 6 years.
It is admitted that persons 15 years of age or over, but below 21 years, regardless of whether or not they
possessed the other qualifications laid down in both the Constitution and the present Election Code, 50 and of
whether or not they are disqualified under the provisions of said Constitution and Code, 51 or those of Republic
Act No. 3590, 52 have participated and voted in the Citizens' Assemblies that have allegedly ratified the new or
revised Constitution drafted by the 1971 Constitutional Convention.
In fact, according to the latest official data, the total number of registered voters 21 years of age or over in the
entire Philippines, available in January 1973, was less than 12 million. Yet, Proclamation No. 1102 states that
14,976,56 "members of all the Barangays (Citizens Assemblies) voted for the adoption of the proposed
Constitution, as against ... 743,869 who voted for its rejection," whereas, on the question whether or not the
people still wanted a plebiscite to be called to ratify the new Constitution, "... 14,298,814 answered that there
was no need for a plebiscite and that the vote of the Barangays (Citizens Assemblies) should be considered as a
vote in a plebiscite." In other words, it is conceded that the number of people who allegedly voted at the
Citizens' Assemblies for exceeded the number of registered voters under the Election Code in force in January
1973.
It is thus clear that the proceedings held in such Citizens' Assemblies and We have more to say on this point
in subsequent pages were fundamentally irregular, in that persons lacking the qualifications prescribed in
section 1 of Art. V of the Constitution were allowed to vote in said Assemblies. And, since there is no means
by which the invalid votes of those less than 21 years of age can be separated or segregated from those of the
qualified voters, the proceedings in the Citizens' Assemblies must be considered null and void. 53

70

It has been held that "(t)he power to reject an entire poll ... should be exercised ... in a case where it
is impossibleto ascertain with reasonable certainty the true vote," as where "it is impossible to separate the
legal votes from the illegal or spurious ... ." 54
In Usman v. Commission on Elections, et al., 55 We held:
Several circumstances, defying exact description and dependent mainly on the factual
milieu of the particular controversy, have the effect of destroying the integrity and
authenticity of disputed election returns and of avoiding their prima facie value and
character. If satisfactorily proven, although in a summary proceeding, such
circumstances as alleged by the affected or interested parties, stamp the election returns
with the indelible mark of falsity and irregularity, and, consequently, of unreliability, and
justify their exclusion from the canvass.
Then, too, the 1935 Constitution requires "a majority of the votes cast" for a proposed amendment to the
Fundamental Law to be "valid" as part thereof, and the term "votes cast" has a well-settled meaning.
The term "votes cast" ... was held in Smith v. Renville County Commissioners, 65 N.W.
956, 64 Minn. 16, to have been used as an equivalent of "ballots cast." 56
The word "cast" is defined as "to deposit formally or officially." 57
It seems to us that a vote is cast when a ballot is deposited indicating a "choice." ... The
word "cast" means "deposit (a ballot) formally or officially ... .
... In simple words, we would define a "vote cast" as the exercise on a ballot of the
choice of the voter on the measure proposed. 58
In short, said Art. XV envisages with the term "votes cast" choices made on ballots not orally or by
raising by the persons taking part in plebiscites. This is but natural and logical, for, since the early years of
the American regime, we had adopted the Australian Ballot System, with its major characteristics,
namely, uniform official ballots prepared and furnished by the Government and secrecy in the voting, with the
advantage of keeping records that permit judicial inquiry, when necessary, into the accuracy of the election
returns. And the 1935 Constitution has been consistently interpreted in all plebiscites for the ratification
rejection of proposed amendments thereto, from 1935 to 1967. Hence, the viva voce voting in the Citizens'
Assemblies was and is null and void ab initio.
b. How should the plebiscite be held? (COMELEC supervision indispensable; essential requisites)
Just as essential as compliance with said Art. V of the 19 Constitution is that of Art. X thereof, particularly its
sections 1 and 2. Indeed, section 1 provides that "(t)here shall be an independent Commission on
Elections ... ." The point to be stressed here is the term "independent." Indeed, why was the term used?
In the absence of said constitutional provision as to the independence of the Commission, would it have been
depends upon either Congress or the Judiciary? The answer must be the negative, because the functions of the
Commission "enforcement and administration" of election laws are neither legislative nor judicial in
nature, and, hence, beyond the field allocated to either Congress or courts of justice. Said functions are by their
nature essentially executive, for which reason, the Commission would be under the "control" of the President,
pursuant to section 10, paragraph (1) of Art. VII of the Constitution, if Art. X thereof did not explicitly declare
that it (the Commission) is an "independent" body. In other words, in amending the original 1935 Constitution,

by inserting therein said Art. X, on the Commission on Elections, the purpose was to make said
Commission independent principally of the Chief Executive.
And the reason therefor is, also, obvious. Prior to the creation of the Commission on Elections as a
constitutional organ, election laws in the Philippines were enforced by the then Department of the Interior,
through its Executive Bureau, one of the offices under the supervision and control of said Department. The
same like other departments of the Executive Branch of the Government was, in turn, under the control
of the Chief Executive, before the adoption of the 1935 Constitution, and had been until the abolition of
said Department, sometime ago under the control of the President of the Philippines, since the effectivity of
said Fundamental Law. Under the provisions thereof, the Executive could so use his power of control over the
Department of the Interior and its Executive Bureau as to place the minority party at such a great, if not
decisive, disadvantage, as to deprive it, in effect, of the opportunity to defeat the political party in power, and,
hence, to enable the same to perpetuate itself therein. To forestall this possibility, the original 1935
Constitution was amended by the establishment of the Commission on Elections as a constitutional
body independent primarily of the President of the Philippines.
The independence of the Commission was sought to be strengthened by the long term of office of its members
nine (9) years, except those first appointed 59 the longest under the Constitution, second only to that of
the Auditor General 60; by providing that they may not be removed from office except by impeachment,
placing them, in this respect, on the same plane as the President, the Vice-President, the Justices of the
Supreme Court and the Auditor General; that they may not be reappointed; that their salaries, "shall be neither
increased nor diminished during their term of office"; that the decisions the Commission "shall be subject to
review by the Supreme Court" only 61; that "(n)o pardon, parole, or suspension sentence for the violation of
any election law may be granted without the favorable recommendation of the Commission" 62; and, that its
chairman and members "shall not, during the continuance in office, engage in the practice of any profession or
intervene, directly or indirectly, in the management or control of any private enterprise which in anyway may
affected by the functions of their office; nor shall they, directly or indirectly, be financially interested in any
contract with the Government or any subdivision or instrumentality thereof." 63 Thus, the framers of the
amendment to the original Constitution of 1935 endeavored to do everything possible protect and insure the
independence of each member of the Commission.
With respect to the functions thereof as a body, section 2 of said Art. X ordains that "(t)he Commission on
Elections shall have exclusive charge of the enforcement and administration all laws relative to the conduct of
elections," apart from such other "functions which may be conferred upon it by law." It further provides that
the Commission "shall decide, save those involving the right to vote, all administrative question affecting
elections, including the determination of the number and location of polling places, and the appointment of
election inspectors and of other election officials." And, to forests possible conflicts or frictions between the
Commission, on one hand, and the other offices or agencies of the executive department, on the other, said
section 2 postulates that "(a)ll law enforcement agencies and instrumentalities of the Government, when
so required by the Commission, shall act as its deputies for the purpose of insuring free, orderly, and honest
elections." Not satisfied with this, it declares, in effect, that "(t)he decisions, orders, and ruling of the
Commission" shall not be subject to review, except by the Supreme Court.
In accordance with the letter and spirit of said Art. X of the Constitution, Rep. Act No. 6388, otherwise known
as the Election Code of 1971, implements the constitutional powers of the Commission on Elections and grants
additional powers thereto, some of which are enumerated in sections 5 and 6 of said Act, quoted
below. 64Moreover, said Act contains, inter alia, detailed provisions regulating contributions and other
(corrupt) practices; the establishment of election precincts; the designation and arrangement of polling places,
including voting booths, to protect the secrecy of the ballot; formation of lists of voters, the identification and
registration of voters, the proceedings therefor, as well as for the inclusion in, or exclusion or cancellation from
said list and the publication thereof; the establishment of municipal, provincial and files of registered voters;
the composition and appointment of board of election inspectors; the particulars of the official ballots to be
used and the precautions to be taken to insure authenticity thereof; the procedure for the casting of votes; the
counting of votes by boards of inspectors; the rules for the appreciation of ballots and the preparation and

71

disposition of election returns; the constitution and operation of municipal, provincials and national boards of
canvassers; the presentation of the political parties and/or their candidates in each election precinct; the
proclamation of the results, including, in the case of election of public officers, election contests; and the
jurisdiction of courts of justice in cases of violation of the provisions of said Election Code and the penalties
for such violations.
Few laws may be found with such meticulous and elaborate set of provisions aimed at "insuring free, orderly,
and honest election," as envisaged in section 2 of Art. X of the Constitution. Yet, none of the foregoing
constitutional and statutory provisions was followed by the so-called Barangays or Citizens' Assemblies. And
no reasons have been given, or even sought to be given therefor. In many, if not most, instances, the election
were held a viva voce, thus depriving the electorate of the right to vote secretly one of the most,
fundamental and critical features of our election laws from time immemorial particularly at a time when the
same was of utmostimportance, owing to the existence of Martial Law.
In Glen v. Gnau, 65 involving the casting of many votes, openly, without complying with the requirements of
the law pertinent thereto, it was held that the "election officers" involved "cannot be too strongly condemned"
therefor and that if they "could legally dispense with such requirement ... they could with equal propriety
dispense with all of them, including the one that the vote shall be by secret ballot, or even by ballot
at all ... ."
Moreover, upon the formal presentation to the Executive of the proposed Constitution drafted by the 1971
Constitutional Convention, or on December 1, 1972, Presidential Decree No. 73 (on the validity of which
which was contested in the plebiscite cases, as well as in the 1972 habeas corpus cases 66 We need not, in
the case of bar, express any opinion) was issued, calling a plebiscite, to be held on January 15, 1973, at which
the proposed Constitution would be submitted to the people for ratification or rejection; directing the
publication of said proposed Constitution; and declaring, inter alia, that "(t)he provision of the Election Code
of 1971, insofar as they are not inconsistent" with said decree excepting those "regarding right and
obligations of political parties and candidates" "shall apply to the conduct of the plebiscite." Indeed, section
2 of said Election Code of 1971 provides that "(a)ll elections of public officers except barrio officials and
plebiscites shall be conducted in the manner provided by this Code." General Order No. 20, dated January 7,
1973, postponing until further notice, "the plebiscite scheduled to be held on January 15, 1973," said nothing
about the procedure to be followed in plebiscite to take place at such notice, and no other order or decree has
been brought to Our attention, expressly or impliedly repealing the provisions of Presidential Decree 73,
insofar as said procedure is concerned.
Upon the other hand, said General Order No. 20 expressly suspended "the provisions of Section 3 of
Presidential Decree No. 73 insofar as they allow free public discussion of proposed Constitution ... temporarily
suspending effects of Proclamation No. 1081 for the purposes of free open dabate on the proposed Constitution
... ." This specific mention of the portions of the decrees or orders or instructions suspended by General Order
No. 20 necessarily implies that all other portions of said decrees, orders or instructions and, hence, the
provisions of Presidential Decree No. 73 outlining the procedure to be followed in the plebiscite for ratification
or rejection of the proposed Constitution remained in force, assuming that said Decree is valid.
It is claimed that by virtue of Presidential Decree No. 86-A the text of which is quoted below 67 the
Executive declared, inter alia, that the collective views expressed in the Citizens' Assemblies "shall
be considered in the formulation of national policies or programs and, wherever practicable, shall be translated
into concrete and specific decision"; that such Citizens' Assemblies "shall consider vital national issues ... like
the holding of the plebiscite on the new Constitution ... and others in the future, which shall serve
as guide or basis for action or decision by the national government"; and that the Citizens' Assemblies "shall
conduct between January 10 and 15, 1973, a referendum on important national issues, including those specified
in paragraph 2 hereof, and submit the results thereof to the Department of Local Governments and Community
Development immediately thereafter, ... ." As in Presidential Decree No. 86, this Decree No. 86-A does not and
cannot exclude the exercise of the constitutional supervisory power of the Commission on Elections or its

participation in the proceedings in said Assemblies, if the same had been intended to constitute the "election"
or Plebiscite required Art. V of the 1935 Constitution. The provision of Decree No. 86-A directing the
immediate submission of the result thereof to the Department of Local Governments Community Development
is not necessarily inconsistent with, and must be subordinate to the constitutional power of the Commission on
Elections to exercise its "exclusive authority over the enforcement and administration of all laws to the
conduct of elections," if the proceedings in the Assemblies would partake of the nature of an "election" or
plebiscite for the ratification or rejection of the proposed Constitution.
We are told that Presidential Decree No. 86 was further amended by Presidential Decree No. 86-B, dated 1973,
ordering "that important national issues shall from time to time; be referred to the Barangays (Citizens
Assemblies) for resolution in accordance with Presidential Decree No. 86-A dated January 5, 1973 and that the
initial referendum include the matter of ratification of the Constitution by the 1971 Constitutional Convention"
and that "(t)he Secretary of the Department of Local Governments and Community Development shall insure
the implementation of this order." As in the case of Presidential Decrees Nos. 86 and 86-A, the foregoing
directives do not necessarily exclude exercise of the powers vested by the 1935 Constitution in the
Commission on Elections, even if the Executive had the authority to repeal Art. X of our Fundamental Law
which he does not possess. Copy of Presidential Decree No. 86-B is appended hereto as Annex B hereof.
The point is that, such of the Barrio Assemblies as were held took place without the intervention of the
Commission on Elections, and without complying with the provisions of the Election Code of 1971 or even of
those of Presidential Decree No. 73. What is more, they were held under the supervision of the very officers
and agencies of the Executive Department sought to be excluded therefrom by Art. X of the 1935 Constitution.
Worse still, said officers and agencies of the 1935 Constitution would be favored thereby, owing to the
practical indefinite extension of their respective terms of office in consequence of section 9 of the Transitory
Provisions, found in Art. XVII of the proposed Constitution, without any elections therefor. And the procedure
therein mostly followed is such that there is no reasonable means of checking the accuracy of the returns files
by the officers who conducted said plebiscites. This is another patent violation of Art. of the Constitution
which can hardly be sanctioned. And, since the provisions of this article form part of the fundamental scheme
set forth in the 1935 Constitution, as amended, to insure the "free, orderly, and honest" expression of the
people's will, the aforementioned violation thereof renders null and void the contested proceedings or alleged
plebiscite in the Citizens' Assemblies, insofar as the same are claimed to have ratified the revised Constitution
proposed by the 1971 Constitutional Convention. "... (a)ll the authorities agree that the legal definition of an
election, as well as that which is usually and ordinarily understood by the term, is a choosing or as election by
those having a right to participate (in the selection) of those who shall fill the offices, or of the adoption or
rejection of any public measure affecting the territory involved. 15 Cyc. 279; Lewis v. Boynton, 25 Colo. 486,
55 Pac. 732; Saunders v. Haynes, 13 Cal. 145; Seaman v. Baughman, 82 Iowa 216, 47 N.W. 1091, 11 L.R.A.
354; State v. Hirsh, 125 Ind. 207, 24 N.E. 1062, 9 L.R.A. 170; Bouvier's Law Dictionary. 68
IV
Has the proposed Constitution aforementioned
been approved by a majority of the people in
Citizens' Assemblies allegedly held
throughout the Philippines?
Respondents maintain the affirmative, relying upon Proclamation No. 1102, the validity of which is precisely
being contested by petitioners herein. Respondents claim that said proclamation is "conclusive" upon this
Court, or is, at least, entitled to full faith and credence, as an enrolled bill; that the proposed Constitution has
been, in fact, ratified, approved or adopted by the "overwhelming" majority of the people; that Art. XV of the
1935 Constitution has thus been "substancially" complied with; and that the Court refrain from passing upon
the validity of Proclamation No. 1102, not only because such question is political in nature, but, also, because
should the Court invalidate the proclamation, the former would, in effect, veto the action of the people in
whom sovereignty resides and from its power are derived.

72

The major flaw in this process of rationalization is that it assumes, as a fact, the very premise on which it is
predicated, and which, moreover, is contested by the petitioners. As the Supreme Court of Minnessota has
aptly put it
... every officer under a constitutional government must act according to law and subject
to its restrictions, and every departure therefrom or disregard thereof must subject him
to the restraining and controlling of the people, acting through the agency of the
judiciary; for it must be remembered that the people act through courts, as well as
through the executive or the Legislature. One department is just as representative as the
other, and the judiciary is the department which is charged with the special duty of
determining the limitations which the law places upon all official action. ... .
Accordingly, the issue boils downs to whether or not the Executive acted within the limits of his authority
when he certified in Proclamation No. 1102 "that the Constitution proposed by the nineteen hundred and
seventy-one (1971) Constitutional Convention has been ratified by an overwhelming majority of all of the
votes cast by the members of all the Barangays (Citizens Assemblies) throughout the Philippines and has
thereby come into effect."
In this connection, it is not claimed that the Chief Executive had personal knowledge of the data he certified in
said proclamation. Moreover, Art. X of the 1935 Constitution was precisely inserted to place beyond the
Executive the power to supervise or even exercise any authority whatsoever over "all laws relative to the
conduct of elections," and, hence, whether the elections are for the choice or selection of public officers or for
the ratification or rejection of any proposed amendment, or revision of the Fundamental Law, since the
proceedings for the latter are, also, referred to in said Art. XV as "elections".
The Solicitor General stated, in his argument before this Court, that he had been informed that there was in
each municipality a municipal association of presidents of the citizens' assemblies for each barrio of the
municipality; that the president of each such municipal association formed part of a provincial or city
association of presidents of such municipal associations; that the president of each one of these provincial or
city associations in turn formed part of a National Association or Federation of Presidents of such Provincial or
City Associations; and that one Francisco Cruz from Pasig, Rizal, as President of said National Association or
Federation, reported to the President of the Philippines, in the morning of January 17, 1973, the total result of
the voting in the citizens' assemblies all over the country from January 10 to January 15, 1973. The Solicitor
General further intimated that the said municipal associations had reported the results of the citizens'
assemblies in their respective municipalities to the corresponding Provincial Association, which, in turn,
transmitted the results of the voting in the to the Department of Local Governments and Community
Development, which tabulated the results of the voting in the citizens' assemblies throughout the Philippines
and then turned them over to Mr. Franciso Cruz, as President or acting President of the National Association or
Federation, whereupon Mr. Cruz, acting in a ceremonial capacity, reported said results (tabulated by the
Department of Governments and Community Development) to the Chief Executive, who, accordingly, issued
Proclamation No. 1102.
The record shows, however, that Mr. Cruz was not even a member of any barrio council since 1972, so that he
could possibly have been a member on January 17, 1973, of a municipal association of presidents of barrio or
ward citizens' assemblies, much less of a Provincial, City or National Association or Federation
of Presidents of any such provincial or city associations.
Secondly, at the conclusion of the hearing of these cases February 16, 1973, and in the resolution of this Court
of same date, the Solicitor General was asked to submit, together with his notes on his oral argument, a true
copy of aforementioned report of Mr. Cruz to the President and of "(p)roclamation, decree, instruction, order,
regulation or circular, if any, creating or directing or authorizing creation, establishment or organization" of
said municipal, provincial and national associations, but neither a copy of alleged report to the President, nor a
copy of any "(p)roclamation, decree, instruction, order, regulation or circular," has been submitted to this

Court. In the absence of said report, "(p)roclamation, decree, instruction," etc., Proclamation No. 1102 is
devoid of any factual and legalfoundation. Hence, the conclusion set forth in the dispositive portion of said
Proclamation No. 1102, to the effect that the proposed new or revised Constitution had been ratified by
majority of the votes cast by the people, can not possibly have any legal effect or value.
The theory that said proclamation is "conclusive upon Court is clearly untenable. If it were, acts of the
Executive and those of Congress could not possibly be annulled or invalidated by courts of justice. Yet, such is
not the case. In fact, even a resolution of Congress declaring that a given person has been elected President or
Vice-President of the Philippines as provided in the Constitution, 69 is not conclusive upon the courts. It is no
more than prima facieevidence of what is attested to by said resolution. 70 If assailed directly in appropriate
proceedings, such as an election protest, if and when authorized by law, as it is in the Philippines, the Court
may receive evidence and declare, in accordance therewith, who was duly elected to the office involved. 71 If
prior to the creation of the Presidential Electoral Tribunal, no such protest could be filed, it was not because the
resolution of Congress declaring who had been elected President or Vice-President was conclusive upon courts
of justice, but because there was no law permitting the filing of such protest and declaring what court or
body would hear and decide the same. So, too, a declaration to the effect that a given amendment to the
Constitution or revised or new Constitution has been ratified by a majority of the votes cast therefor, may be
duly assailed in court and be the object of judicial inquiry, in direct proceedings therefor such as the cases
at bar and the issue raised therein may and should be decided in accordance with the evidence presented.
The case of In re McConaughy 72 is squarely in point. "As the Constitution stood from the organization of the
state" of Minnessota "all taxes were required to be raised under the system known as the 'general
property tax.' Dissatisfaction with the results of this method and the development of more scientific and
satisfactory methods of raising revenue induced the Legislature to submit to the people an amendment to the
Constitution which provided merely that taxes shall be uniform upon the same class of subjects. This proposed
amendment was submitted at the general election held in November, 1906, and in due time it was certified by
the state canvassing board and proclaimed by the Governor as having been legally adopted. Acting upon the
assumption that the amendment had become a part of the Constitution, the Legislature enacted statutes
providing for a State Tax Commission and a mortgage registry tax, and the latter statute, upon the same theory,
was held constitutional" by said Court. "The district court found that the amendment had no in fact been
adopted, and on this appeal" the Supreme Court was "required to determine the correctness of that
conclusion."
Referring to the effect of the certification of the State Board of Canvassers created by the Legislature and of
theproclamation made by the Governor based thereon, the Court held: "It will be noted that this board does no
more than tabulate the reports received from the various county board and add up and certify the results. State
v. Mason, 45 Wash. 234, 88 Pac. 126, 9 L.R.A. (U.S.) 1221. It is settled law that the decisions of election
officers, and canvassing boards are not conclusive and that the final decision must rest with the courts, unless
the law declares that the decisions of the board shall be final" and there is no such law in the cases at bar.
"... The correctness of the conclusion of the state board rests upon the correctness of the returns made by the
county boards and it is inconceivable that it was intended that this statement of result should be final and
conclusive regardless of the actual facts. The proclamation of the Governor adds nothing in the way of
conclusiveness to the legal effect of the action of the canvassing board. Its purpose is to formally notify the
people of the state of the result of the voting as found by the canvassing board. James on Const. Conv. (4th
Ed.) sec. 523."
In Bott v. Wartz, 73 the Court reviewed the statement of results of the election made by the canvassing board, in
order that the true results could be judicially determined. And so did the court in Rice v. Palmer. 74
Inasmuch as Art. X of the 1935 Constitution places under the "exclusive" charge of the Commission on
Elections, "the enforcement and administration of all laws relative to the conduct of
elections," independently of the Executive, and there is not even a certification by the Commission in support
of the alleged results of the citizens' assemblies relied upon in Proclamation No. 1102 apart from the fact

73

that on January 17, 1973 neither the alleged president of the Federation of Provincial or City Barangays nor the
Department of Local Governments had certified to the President the alleged result of the citizens' assemblies
all over the Philippines it follows necessarily that, from a constitutional and legal viewpoint, Proclamation
No. 1102 is not even prima facieevidence of the alleged ratification of the proposed Constitution.
Referring particularly to the cases before Us, it will be noted that, as pointed out in the discussion of the
preceding topic, the new or revised Constitution proposed by the 1971 Constitutional Convention
was not ratified in accordance with the provisions of the 1935 Constitution. In fact, it has not even been,
ratified in accordance with said proposed Constitution, the minimum age requirement therein for the exercise
of the right of suffrage beingeighteen (18) years, apart from the fact that Art. VI of the proposed Constitution
requires "secret" voting, which was not observed in many, if not most, Citizens' Assemblies. Besides, both the
1935 Constitution and the proposed Constitution require a "majority of the votes cast" in an election or
plebiscite called for the ratification of an amendment or revision of the first Constitution or the effectivity of
the proposed Constitution, and the phrase "votes cast" has been construed to mean "votes made in writing not
orally, as it was in many Citizens' Assemblies.75
Even counsel for Gil J. Puyat and Jose Roy, as respondents in L-36165, asserts openly that Art. XV of the
Constitution has not been complied with, and since the alleged substantial compliance with the requirements
thereof partakes of the nature of a defense set up by the other respondents in these cases, the burden of proving
such defense which, if true, should be within their peculiar knowledge is clearly on such respondents.
Accordingly, if despite the extensive notes and documents submitted by the parties herein, the members of the
Court do not know or are not prepared to say whether or not the majority of the people or of those who took
part in the Citizens' Assemblies have assented to the proposed Constitution, the logical step would be to give
due course to these cases, require the respondents to file their answers, and the plaintiffs their reply, and,
thereafter, to receive the pertinent evidence and then proceed to the determination of the issues raised thereby.
Otherwise, we would be placing upon the petitioners the burden of disproving a defense set up by the
respondents, who have not so far established the truth of such defense.
Even more important, and decisive, than the foregoing is the circumstance that there is ample reason to believe
that many, if not most, of the people did not know that the Citizens' Assemblies were, at the time they were
held, plebiscites for the ratification or rejection of the proposed Constitution. Hence, in Our decision in the
plebiscite cases, We said, inter alia:
Meanwhile, or on December 17, 1972, the President had issued an order temporarily
suspending the effects of Proclamation No. 1081, for the purpose of free and open
debate on the Proposed Constitution. On December 23, the President announced the
postponement of the plebiscite for the ratification or rejection of the Proposed
Constitution. No formal action to this effect was taken until January 7, 1973, when
General Order No. 20 was issued, directing "that the plebiscite scheduled to be held on
January 15, 1973, be postponed until further notice." Said General Order No. 20,
moreover, "suspended in the meantime" the "order of December 17, 1972, temporarily
suspending the effects of Proclamation No. 1081 for purposes of free and open debate
on the proposed Constitution.
In view of these events relative to the postponement of the aforementioned plebiscite, the
Court deemed it fit to refrain, for the time being, from deciding the aforementioned
cases, for neither the date nor the conditions under which said plebiscite would be held
were known or announced officially. Then again, Congress was, pursuant to the 1935
Constitution, scheduled to meet in regular session on January 22, 1973, and since the
main objection to Presidential Decree No. 73 was that the President does not have the
legislative authority to call a plebiscite and appropriate funds therefor, which Congress
unquestionably could do, particularly in view of the formal postponement of the
plebiscite by the President reportedly after consultation with, among others, the

leaders of Congress and the Commission on Elections the Court deemed it more
imperative to defer its final action on these cases.
And, apparently, the parties in said cases entertained the same belief, for, on December 23, 1972 four (4)
days after the last hearing of said cases 76 the President announced the postponement of the plebiscite
scheduled by Presidential Decree No. 73 to be held on January 15, 1973, after consultation with the
Commission on Elections and the leaders of Congress, owing to doubts on the sufficiency of the time available
to translate the proposed Constitution into some local dialects and to comply with some pre-electoral
requirements, as well as to afford the people a reasonable opportunity to be posted on the contents and
implications of said transcendental document. On January 7, 1973, General Order No. 20 was issued formally,
postponing said plebiscite "until further notice." How can said postponement be reconciled with the theory that
the proceedings in the Citizens' Assemblies scheduled to be held from January 10 to January 15, 1973, were
"plebiscites," in effect, accelerated, according to the theory of the Solicitor General, for the ratification of the
proposed Constitution? If said Assemblies were meant to be the plebiscites or elections envisaged in Art. XV
of the Constitution, what, then, was the "plebiscite" postponed by General Order No. 20? Under these
circumstances, it was only reasonable for the people who attended such assemblies to believe that the same
were not an "election" or plebiscite for the ratification or adoption of said proposed Constitution.
And, this belief is further bolstered up by the questions propounded in the Citizens' Assemblies, namely:
[1] Do you like the New Society?
[2] Do you like the reforms under martial law?
[3] Do you like Congress again to hold sessions?
[4] Do you like the plebiscite to be held later?
[5] Do you like the way President Marcos is running the affairs of the
government? [Bulletin Today, January 10, 1973; emphasis an additional question.]
[6] Do you approve of the citizens assemblies as the base of popular government to
decide issues of national interests?
[7] Do you approve of the new Constitution?
[8] Do you want a plebiscite to be called to ratify the new Constitution?
[9] Do you want the elections to be held in November, 1973 in accordance with the
provisions of the 1935 Constitution?
[10] If the elections would not be held, when do you want the next elections to be
called?
[11] Do you want martial law to continue? [Bulletin Today, January 11, 1973]
To begin with, questions nos. 1, 2, 3, 4, 5, 6, 9, 10 and 11 are not proper in a plebiscite for the ratification of a
proposed Constitution or of a proposed amendment thereto. Secondly, neither is the language of question No. 7
"Do you approve the new Constitution?" One approves "of" the act of another which does not need such

74

approval for the effectivity of said act, which the first person, however, finds to be good, wise satisfactory. The
approval of the majority of the votes cast in plebiscite is, however, essential for an amendment to the
Constitution to be valid as part thereof. Thirdly, if the proceedings in the Citizens' Assemblies constituted a
plebiscite question No. 8 would have been unnecessary and improper, regardless of whether question No. 7
were answered affirmatively or negatively. If the majority of the answers to question No. 7 were in the
affirmative, the proposed Constitution would have become effective and no other plebiscite could be held
thereafter in connection therewith, even if the majority of the answers to question No. 8 were, also, in the
affirmative. If the majority of the answers to question No. 7 were in the negative, neither may another
plebiscite be held, even if the majority of the answers to question No. 8 were in the affirmative. In either case,
not more than one plebiscite could be held for the ratification or rejection of the proposed Constitution. In
short, the insertion of said two (2) questions apart from the other questions adverted to above indicates
strongly that the proceedings therein did not partake of the nature of a plebiscite or election for the ratification
or rejection of the proposed Constitution.
Indeed, I can not, in good conscience, declare that the proposed Constitution has been approved or adopted by
the people in the citizens' assemblies all over the Philippines, when it is, to my mind, a matter of judicial
knowledge that there have been no such citizens' assemblies in many parts of Manila and suburbs, not to say,
also, in other parts of the Philippines. In a letter of Governor Efren B. Pascual of Bataan, dated January 15,
1973, to the Chief Executive, the former reported:
... This report includes a resumee (sic) of the activities we undertook in effecting
the referendum on the eleven questions you wanted our people consulted on and the
Summary of Results thereof for each municipality and for the whole province.
xxx xxx xxx
... Our initial plans and preparations, however, dealt only on the original five questions.
Consequently, when we received an instruction on January 10 to change the
questions, we urgently suspended all scheduled Citizens Assembly meetings on that
day and called all Mayors, Chiefs of Offices and other government officials to another
conference to discuss with them the new set of guidelines and materials to be used.

participation showed their preference and readiness to accept the new method of government to
people consultation in shaping upgovernment policies."
This communication manifestly shows: 1) that, as late a January 11, 1973, the Bataan officials had still
to discuss not put into operation means and ways to carry out the changing instructions from the top on
how to organize the citizens' assemblies, what to do therein and even what questions or topics to propound or
touch in said assemblies; 2) that the assemblies would involve no more than consultations or dialogues
between people and government not decisions be made by the people; and 3) that said consultations were
aimed only at "shaping up government policies" and, hence could not, and did not, partake of the nature of a
plebiscite for the ratification or rejection of a proposed amendment of a new or revised Constitution for the
latter does not entail the formulation of a policy of the Government, but the making of decision by the
people on the new way of life, as a nation, they wish to have, once the proposed Constitution shall have been
ratified.
If this was the situation in Bataan one of the provinces nearest to Manila as late as January 11, 1973, one
can easily imagine the predicament of the local officials and people in the remote barrios in northern and
southern Luzon, in the Bicol region, in the Visayan Islands and Mindanao. In fact, several members of the
Court, including those of their immediate families and their household, although duly registered voters in the
area of Greater Manila, were not even notified that citizens' assemblies would be held in the places where their
respective residences were located. In the Prohibition and Amendment case, 77 attention was called to the
"duty cast upon the court of taking judicial cognizance of anything affecting the existence and validity of any
law or portion of the
Constitution ... ." In line with its own pronouncement in another case, the Federal Supreme Court of the United
States stressed, in Baker v. Carr, 78 that "a court is not at liberty to shut its eyes to an obvious mistake, when
the validity of the law depends upon the truth of what is declared."
In the light of the foregoing, I cannot see how the question under consideration can be answered or resolved
otherwise than in the negative.
V
Have the people acquiesced in the proposed Constitution?

On January 11, ... another instruction from the top was received to include the original
five questions among those to be discussed and asked in the Citizens' Assembly
meetings. With this latest order,we again had to make modifications in our
instructions to all those managing and supervising the holding of the Citizens' Assembly
meetings throughout the province. ... Aside from the coordinators we had from the
Office of the Governor, the splendid cooperation and support extended by almost all
government officials and employees in the province, particularly of the Department of
Education, PC and PACD personnel, provided us with enough hands to trouble shoot
and implement sudden changes in the instructions anytime and anywhere needed. ...
... As to our people, in general, their enthusiastic participation showed their preference
and readiness to accept this new method of government to people consultation in
shaping up government policies.
Thus, as late as January 10, 1973, the Bataan officials had to suspend "all scheduled Citizens' Assembly
meetings ..." and call all available officials "... to discuss with them the new set of guidelines and materials to
be used ... ." Then, "on January 11 ... another instruction from the top was received to include the original five
questions among those be discussed and asked in the Citizens' Assembly meetings. With this latest order, we
again had to make modifications in our instructions to all those managing and supervising holding of the
Citizens' Assembly meetings throughout province. ... As to our people, in general, their enthusiastic

It is urged that the present Government of the Philippines is now and has been run, since January 17, 1971,
under the Constitution drafted by the 1971 Constitutional Convention; that the political department of the
Government has recognized said revised Constitution; that our foreign relations are being conducted under
such new or revised Constitution; that the Legislative Department has recognized the same; and that the
people, in general, have, by their acts or omissions, indicated their conformity thereto.
As regards the so-called political organs of the Government, gather that respondents refer mainly to the offices
under the Executive Department. In a sense, the latter performs some functions which, from a constitutional
viewpoint, are politics in nature, such as in recognizing a new state or government, in accepting diplomatic
representatives accredited to our Government, and even in devising administrative means and ways to better
carry into effect. Acts of Congress which define the goals or objectives thereof, but are either imprecise or
silent on the particular measures to be resorted to in order to achieve the said goals or delegate the power to do
so, expressly or impliedly, to the Executive. This, notwithstanding, the political organ of a government that
purports to be republican is essentially the Congress or Legislative Department. Whatever may be the
functions allocated to the Executive Department specially under a written, rigid Constitution with a
republican system of Government like ours the role of that Department is inherently, basically and
fundamentally executive in nature to "take care that the laws be faithfully executed," in the language of our
1935 Constitution. 79

75

Consequently, I am not prepared to concede that the acts the officers and offices of the Executive Department,
in line with Proclamation No. 1102, connote a recognition thereof o an acquiescence thereto. Whether they
recognized the proposed Constitution or acquiesce thereto or not is something that cannot legally, much less
necessarily or even normally, be deduced from their acts in accordance therewith, because the are bound to
obey and act in conformity with the orders of the President, under whose "control" they are, pursuant to the
1935 Constitution. They have absolutely no other choice, specially in view of Proclamation No. 1081 placing
the Philippines under Martial Law. Besides, by virtue of the very decrees, orders and instructions issued by the
President thereafter, he had assumed all powers of Government although some question his authority to do
so and, consequently, there is hardly anything he has done since the issuance of Proclamation No. 1102, on
January 17, 1973 declaring that the Constitution proposed by the 1971 Constitutional Convention has been
ratified by the overwhelming majority of the people that he could not do under the authority he claimed to
have under Martial Law, since September 21, 1972, except the power of supervision over inferior courts and its
personnel, which said proposed Constitution would place under the Supreme Court, and which the President
has not ostensibly exercised, except as to some minor routine matters, which the Department of Justice has
continued to handle, this Court having preferred to maintain the status quo in connection therewith pending
final determination of these cases, in which the effectivity of the aforementioned Constitution is disputed.
Then, again, a given department of the Government cannot generally be said to have "recognized" its own acts.
Recognition normally connotes the acknowledgment by a party of the acts of another. Accordingly, when a
subordinate officer or office of the Government complies with the commands of a superior officer or office,
under whose supervision and control he or it is, the former merely obeys the latter. Strictly speaking, and from
a legal and constitutional viewpoint, there is no act of recognition involved therein. Indeed, the lower officer or
office, if he or it acted otherwise, would just be guilty of insubordination.
Thus, for instance, the case of Taylor v. Commonwealth 80 cited by respondents herein in support of the
theory of the people's acquiescence involved a constitution ordained in 1902 and "proclaimed by a
convention duly called by a direct vote of the people of the state to revise and amend the Constitution of 1869.
The result of the work of that Convention has been recognized, accepted and acted upon as the only valid
Constitution of the State" by
1. The "Governor of the State in swearing fidelity to it and proclaiming it, as directed thereby";
2. The "Legislature in its formal official act adopting a joint resolution, July 15, 1902, recognizing the
Constitution ordained by the Convention ...";
3. The "individual oaths of its members to support it, and by its having been engaged for nearly a year, in
legislating under it and putting its provisions into
operation ...";
4. The "judiciary in taking the oath prescribed thereby to support it and by enforcing its provisions ..."; and
5. The "people in their primary capacity by peacefully accepting it and acquiescing in it, by registering as
voters under it to the extent of thousands throughout the State, and by voting, under its provisions, at a general
election for their representatives in the Congress of the United States."
Note that the New Constitution of Virginia, drafted by a convention whose members were elected directly by
the people, was not submitted to the people for ratification or rejection thereof. But, it was recognized, not by
the convention itself, but by other sectors of the Government, namely, the Governor; the Legislature not
merely by individual acts of its members, but by formal joint resolution of its two (2) chambers; by the
judiciary; and by the people, in the various ways specified above. What is more, there was no martial law. In
the present cases, noneof the foregoing acts of acquiescence was present. Worse still, there is martial law,
the strict enforcement of which was announced shortly before the alleged citizens' assemblies. To top it all, in

the Taylor case, the effectivity of the contested amendment was not contested judicially until about one (1)
year after the amendment had been put into operation in all branches of the Government, and complied with
by the people who participated in the elections held pursuant to the provisions of the new Constitution. In the
cases under consideration, the legality of Presidential Decree No. 73 calling a plebiscite to be held on January
15, 1973, was impugned as early as December 7, 1972, or five (5) weeks before the scheduled plebiscite,
whereas the validity of Proclamation No. 1102 declaring on January 17, 1973, that the proposed Constitution
had been ratified despite General Order No. 20, issued on January 7, 1972, formally and officially
suspending the plebiscite until further notice was impugned as early as January 20, 1973, when L-36142
was filed, or three (3) days after the issuance of Proclamation No. 1102.
It is further alleged that a majority of the members of our House of Representatives and Senate have
acquiesced in the new or revised Constitution, by filing written statements opting to serve in the Ad Interim
Assembly established in the Transitory Provisions of said Constitution. Individual acts of recognition by
members of our legislature, as well as of other collegiate bodies under the government, are invalid as acts of
said legislature or bodies, unless its members have performed said acts in session duly assembled, or unless the
law provides otherwise, and there is no such law in the Philippines. This is a well-established principle of
Administrative Law and of the Law of Public Officers, and no plausible reason has been adduced to warrant
departure therefrom. 81
Indeed, if the members of Congress were generally agreeable to the proposed Constitution, why did it become
necessary to padlock its premises to prevent its meeting in session on January 22, 1973, and thereafter as
provided in the 1935 Constitution? It is true that, theoretically, the members of Congress, if bent on
discharging their functions under said Constitution, could have met in any other place, the building in which
they perform their duties being immaterial to the legality of their official acts. The force of this argument is,
however, offset or dissipated by the fact that, on or about December 27, 1972, immediately after a conference
between the Executive, on the one hand, and members of Congress, on the other, some of whom expressed the
wish to meet in session on January 22, 1973, as provided in the 1935 Constitution, a Daily Express columnist
(Primitivo Mijares) attributed to Presidential Assistant Guillermo de Vega a statement to the effect that
"'certain members of the Senate appear to be missing the point in issue' when they reportedly insisted on
taking up first the question of convening Congress." The Daily Express of that date, 82 likewise, headlined, on
its front page, a "Senatorial PlotAgainst 'Martial Law Government' Disclosed". Then, in its issue of December
29, 1972, the same paper imputed to the Executive an appeal "to diverse groups involved in a conspiracy to
undermine" his powers" under martial law to desist from provoking a constitutional crisis ... which may result
in the exercise by me of authority I have not exercised."
No matter how good the intention behind these statement may have been, the idea implied therein was too
clear an ominous for any member of Congress who thought of organizing, holding or taking part in a session of
Congress, not to get the impression that he could hardly do so without inviting or risking the application of
Martial Law to him. Under these conditions, I do not feel justified in holding that the failure of the members of
Congress to meet since January 22, 1973, was due to their recognition, acquiescence in or conformity with the
provisions of the aforementioned Constitution, or its alleged ratification.
For the same reasons, especially because of Proclamation No. 1081, placing the entire Philippines under
Martial Law, neither am I prepared to declare that the people's inaction as regards Proclamation No. 1102, and
their compliance with a number of Presidential orders, decrees and/or instructions some or many of which
have admittedly had salutary effects issued subsequently thereto amounts, constitutes or attests to a
ratification, adoption or approval of said Proclamation No. 1102. In the words of the Chief Executive, "martial
law connotespower of the gun, meant coercion by the military, and compulsion and intimidation." 83 The failure
to use the gun against those who comply with the orders of the party wielding the weapon does not detract
from the intimidation that Martial Law necessarily connotes. It may reflect the good, reasonable and
wholesome attitude of the person who has the gun, either pointed at others, without pulling the trigger, or
merely kept in its holster, but not without warning that he may or would use it if he deemed it necessary. Still,
the intimidation is there, and inaction or obedience of the people, under these conditions, is not necessarily an
act of conformity or acquiescence. This is specially so when we consider that the masses are, by and

76

large, unfamiliar with the parliamentary system, the new form of government introduced in the proposed
Constitution, with the particularity that it is not even identical to that existing in England and other parts of the
world, and that even experienced lawyers and social scientists find it difficult to grasp the full implications of
some provisions incorporated therein.
As regards the applicability to these cases of the "enrolled bill" rule, it is well to remember that the same refers
to a document certified to the President for his action under the Constitution by the Senate President and
the Speaker of the House of Representatives, and attested to by the Secretary of the Senate and the Secretary of
the House of Representatives, concerning legislative measures approved by the two Houses of Congress. The
argument of the Solicitor General is, roughly, this: If the enrolled bill is entitled to full faith and credence and,
to this extent, it is conclusive upon the President and the judicial branch of the Government, why should
Proclamation No. 1102 merit less consideration than in enrolled bill?
Before answering this question, I would like to ask the following: If, instead of being certified by the
aforementioned officers of Congress, the so-called enrolled bill were certified by, say, the President of the
Association of Sugar Planters and/or Millers of the Philippines, and the measure in question were a proposed
legislation concerning Sugar Plantations and Mills sponsored by said Association, which even prepared the
draft of said legislation, as well as lobbied actually for its approval, for which reason the officers of the
Association, particularly, its aforementioned president whose honesty and integrity are unquestionable
were present at the deliberations in Congress when the same approved the proposed legislation, would the
enrolled bill rule apply thereto? Surely, the answer would have to be in the negative. Why? Simply, because
said Association President has absolutely no official authority to perform in connection therewith, and, hence,
his certification is legally, as good as non-existent.
Similarly, a certification, if any, of the Secretary of the Department of Local Governments and Community
Development about the tabulated results of the voting in the Citizens Assemblies allegedly held all over the
Philippines and the records do not show that any such certification, to the President of the Philippines or to
the President Federation or National Association of presidents of Provincial Associations of presidents of
municipal association presidents of barrio or ward assemblies of citizens would not, legally and
constitutionally, be worth the paper on which it is written. Why? Because said Department Secretary is not the
officer designated by law to superintend plebiscites or elections held for the ratification or rejection of a
proposed amendment or revision of the Constitution and, hence, to tabulate the results thereof. Worse still, it is
the department which, according to Article X of the Constitution, should not and must not be all participate in
said plebiscite if plebiscite there was.
After citing approvingly its ruling in United States v. Sandoval, 84 the Highest Court of the United States that
courts "will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power." 85
I cannot honestly say, therefore, that the people impliedly or expressly indicated their conformity to the
proposed Constitution.

said issue, placing the same, according to respondents, beyond the ambit of judicial inquiry and determination.
If this defense was sustained, the cases could readily be dismissed; but, owing to the importance of the
questions involved, a reasoned resolution was demanded by public interest. At the same time, respondents had
cautioned against a judicial inquiry into the merits of the issues posed on account of the magnitude of the evil
consequences, it was claimed, which would result from a decision thereon, if adverse to the Government.
As a matter of fact, some of those issues had been raised in the plebiscite cases, which were dismissed as moot
and academic, owing to the issuance of Proclamation No. 1102 subsequently to the filing of said cases,
although before the rendition of judgment therein. Still one of the members of the Court (Justice Zaldivar) was
of the opinion that the aforementioned issues should be settled in said cases, and he, accordingly, filed an
opinion passing upon the merits thereof. On the other hand, three (3) members of the Court Justices
Barredo, Antonio and Esguerra filed separate opinions favorable to the respondents in the plebiscite cases,
Justice Barredo holding "that the 1935 Constitution has pro tanto passed into history and has been legitimately
supplanted by the Constitution in force by virtue of Proclamation 1102." 86 When the petitions at bar were
filed, the same three (3) members of the Court, consequently, voted for the dismissal of said petitions. The
majority of the members of the Court did not share, however, either view, believing that the main question that
arose before the rendition of said judgment had not been sufficiently discussed and argued as the nature and
importance thereof demanded.
The parties in the cases at bar were accordingly given every possible opportunity to do so and to elucidate on
and discuss said question. Thus, apart from hearing the parties in oral argument for five (5) consecutive days
morning and afternoon, or a total of exactly 26 hours and 31 minutes the respective counsel filed
extensive notes on their or arguments, as well as on such additional arguments as they wished to submit, and
reply notes or memoranda, in addition to rejoinders thereto, aside from a sizeable number of document in
support of their respective contentions, or as required by the Court. The arguments, oral and written, submitted
have been so extensive and exhaustive, and the documents filed in support thereof so numerous and bulky,
that, for all intents and purposes, the situation is as if disregarding forms the petitions had been given
due course and the cases had been submitted for decision.
Accordingly, the majority of the members of the Court believe that they should express their views on the
aforementioned issues as if the same were being decided on the merits, and they have done so in their
individual opinion attached hereto. Hence, the resume of the votes cast and the tenor of the resolution, in the
last pages hereof, despite the fact that technically the Court has not, as yet, formally given due course to the
petitions herein.
And, now, here are my views on the reliefs sought by the parties.
In L-36165, it is clear that we should not issue the writ of mandamus prayed for against Gil J. Puyat and Jose
Roy, President and President Pro Tempore respectively of the Senate, it being settled in our jurisdiction, based
upon the theory of separation of powers, that the judiciary will not issue such writ to the head of a co-equal
department, like the aforementioned officers of the Senate.

VI
Are the Parties entitled to any relief?
Before attempting to answer this question, a few words be said about the procedure followed in these five (5)
cases. In this connection, it should be noted that the Court has not decided whether or not to give due course to
the petitions herein or to require the respondents to answer thereto. Instead, it has required the respondents to
comment on the respective petitions with three (3) members of the voting to dismiss them outright and
then considers comments thus submitted by the respondents as motions to dismiss, as well as set the same for
hearing. This was due to the transcendental nature of the main issue raised, the necessity of deciding the same
with utmost dispatch, and the main defense set up by respondents herein, namely, the alleged political nature of

In all other respects and with regard to the other respondent in said case, as well as in cases L-36142, L-36164,
L-36236 and L-36283, my vote is that the petitions therein should be given due course, there being more
thanprima facie showing that the proposed Constitution has not been ratified in accordance with Article XV of
the 1935 Constitution, either strictly, substantially, or has been acquiesced in by the people or majority thereof;
that said proposed Constitution is not in force and effect; and that the 1935 Constitution is still the
Fundamental Law of the Land, without prejudice to the submission of said proposed Constitution to the people
at a plebiscite for its ratification or rejection in accordance with Articles V, X and XV of the 1935 Constitution
and the provisions of the Revised Election Code in force at the time of such plebiscite.

77

Perhaps others would feel that my position in these cases overlooks what they might consider to be the
demands of "judicial statesmanship," whatever may be the meaning of such phrase. I am aware of this
possibility, if not probability; but "judicial statesmanship," though consistent with Rule of Law, cannot
prevail over the latter. Among consistent ends or consistent values, there always is a hierarchy, a rule of
priority.
We must realize that the New Society has many achievements which would have been very difficult, if not
impossible, to accomplish under the old dispensation. But, in and for the judiciary, statesmanship should not
prevail over the Rule of Law. Indeed, the primacy of the law or of the Rule of Law and faithful adherence
thereto are basic, fundamental and essential parts of statesmanship itself.
Resume of the Votes Cast and the Court's Resolution
As earlier stated, after the submittal by the members of the Court of their individual opinions and/or
concurrences as appended hereto, the writer will now make, with the concurrence of his colleagues, a resume
or summary of the votes cast by each of them.
It should be stated that by virtue of the various approaches and views expressed during the deliberations, it was
agreed to synthesize the basic issues at bar in broad general terms in five questions for purposes of taking the
votes. It was further agreed of course that each member of the Court would expound in his individual opinion
and/or concurrence his own approach to the stated issues and deal with them and state (or not) his opinion
thereon singly or jointly and with such priority, qualifications and modifications as he may deem proper, as
well as discuss thereon other related issues which he may consider vital and relevant to the cases at bar.
The five questions thus agreed upon as reflecting the basic issues herein involved are the following:
1. Is the issue of the validity of Proclamation No. 1102 a justiciable, or political and therefore non-justiciable,
question?
2. Has the Constitution proposed by the 1971 Constitutional Convention been ratified validly (with substantial,
if not strict, compliance) conformably to the applicable constitutional and statutory provisions?
3. Has the aforementioned proposed Constitution acquiesced in (with or without valid ratification) by the
people?
4. Are petitioners entitled to relief? and
5. Is the aforementioned proposed Constitution in force?
The results of the voting, premised on the individual views expressed by the members of the Court in their
respect opinions and/or concurrences, are as follows:
1. On the first issue involving the political-question doctrine Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court, hold that the issue of the validity of Proclamation No.
1102 presents a justiciable and non-political question. Justices Makalintal and Castro did not vote squarely on
this question, but, only inferentially, in their discussion of the second question. Justice Barredo qualified his
vote, stating that "inasmuch as it is claimed there has been approval by the people, the Court may inquire into
the question of whether or not there has actually been such an approval, and, in the affirmative, the Court
should keep hands-off out of respect to the people's will, but, in negative, the Court may determine from both
factual and legal angles whether or not Article XV of the 1935 Constitution been complied with." Justices

Makasiar, Antonio, Esguerra, or three (3) members of the Court hold that the issue is political and "beyond the
ambit of judicial inquiry."
2. On the second question of validity of the ratification, Justices Makalintal, Zaldivar, Castro, Fernando,
Teehankee and myself, or six (6) members of the Court also hold that the Constitution proposed by the 1971
Constitutional Convention was not validly ratified in accordance with Article XV, section 1 of the 1935
Constitution, which provides only one way for ratification, i.e., "in an election or plebiscite held in accordance
with law and participated in only by qualified and duly registered voters. 87
Justice Barredo qualified his vote, stating that "(A)s to whether or not the 1973 Constitution has been validly
ratified pursuant to Article XV, I still maintain that in the light of traditional concepts regarding the meaning
and intent of said Article, the referendum in the Citizens' Assemblies, specially in the manner the votes therein
were cast, reported and canvassed, falls short of the requirements thereof. In view, however, of the fact that I
have no means of refusing to recognize as a judge that factually there was voting and that the majority of the
votes were for considering as approved the 1973 Constitution without the necessity of the usual form of
plebiscite followed in past ratifications, I am constrained to hold that, in the political sense, if not in the
orthodox legal sense, the people may be deemed to have cast their favorable votes in the belief that in doing so
they did the part required of them by Article XV, hence, it may be said that in its political aspect, which is what
counts most, after all, said Article has been substantially complied with, and, in effect, the 1973 Constitution
has been constitutionally ratified."
Justices Makasiar, Antonio and Esguerra, or three (3) members of the Court hold that under their view there
has been in effect substantial compliance with the constitutional requirements for valid ratification.
3. On the third question of acquiescence by the Filipino people in the aforementioned proposed Constitution,
no majority vote has been reached by the Court.
Four (4) of its members, namely, Justices Barredo, Makasiar, Antonio and Esguerra hold that "the people have
already accepted the 1973 Constitution."
Two (2) members of the Court, namely, Justice Zaldivar and myself hold that there can be no free expression,
and there has even been no expression, by the people qualified to vote all over the Philippines, of their
acceptance or repudiation of the proposed Constitution under Martial Law. Justice Fernando states that "(I)f it
is conceded that the doctrine stated in some American decisions to the effect that independently of the validity
of the ratification, a new Constitution once accepted acquiesced in by the people must be accorded recognition
by the Court, I am not at this stage prepared to state that such doctrine calls for application in view of the
shortness of time that has elapsed and the difficulty of ascertaining what is the mind of the people in the
absence of the freedom of debate that is a concomitant feature of martial law." 88
Three (3) members of the Court express their lack of knowledge and/or competence to rule on the question.
Justices Makalintal and Castro are joined by Justice Teehankee in their statement that "Under a regime of
martial law, with the free expression of opinions through the usual media vehicle restricted, (they) have no
means of knowing, to the point of judicial certainty, whether the people have accepted the Constitution." 89
4. On the fourth question of relief, six (6) members of the Court, namely, Justices Makalintal, Castro, Barredo,
Makasiar, Antonio and Esguerra voted to DISMISS the petition. Justice Makalintal and Castro so voted on the
strength of their view that "(T)he effectivity of the said Constitution, in the final analysis, is the basic and
ultimate question posed by these cases to resolve which considerations other than judicial, an therefore beyond
the competence of this Court, 90 are relevant and unavoidable." 91

78

Four (4) members of the Court, namely, Justices Zaldivar, Fernando, Teehankee and myself voted to deny
respondents' motion to dismiss and to give due course to the petitions.

HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL


TREASURER, respondents.

5. On the fifth question of whether the new Constitution of 1973 is in force:

G.R. No. L-44684. October 12,1976

Four (4) members of the Court, namely, Justices Barredo, Makasiar, Antonio and
Esguerra hold that it is in force by virtue of the people's acceptance thereof;
Four (4) members of the Court, namely, Justices Makalintal, Castro, Fernando and
Teehankee cast no vote thereon on the premise stated in their votes on the third question
that they could not state with judicial certainty whether the people have accepted or not
accepted the Constitution; and
Two (2) members of the Court, namely, Justice Zaldivar and myself voted that the
Constitution proposed by the 1971 Constitutional Convention is not in force;

VICENTE M. GUZMAN, petitioner,


vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,
vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.

with the result that there are not enough votes to declare that the new Constitution is not in force.

MARTIN, J,:

ACCORDINGLY, by virtue of the majority of six (6) votes of Justices Makalintal, Castro, Barredo, Makasiar,
Antonio and Esguerra with the four (4) dissenting votes of the Chief Justice and Justices Zaldivar, Fernando
and Teehankee, all the aforementioned cases are hereby dismissed. This being the vote of the majority, there is
no further judicial obstacle to the new Constitution being considered in force and effect.

The capital question raised in these prohibition suits with preliminary injunction relates to the power of the
incumbent President of the Philippines to propose amendments to the present Constitution in the absence of
the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a
national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other
things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period
of its existence, the length of the period for tile exercise by the President of his present powers.1

It is so ordered.

Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree
No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies)
applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the
footnote below. 2

SANIDAD VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the
questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites
in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly
evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a
legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.
The questions ask, to wit:
(1) Do you want martial law to be continued?
(2) Whether or not you want martial law to be continued, do you approve the following amendments to the
Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite
within the contemplation of Section 2 of Article XVI of the Constitution.
PROPOSED AMENDMENTS:

79

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the
interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include
the incumbent President of the Philippines, representatives elected from the different regions of the nation,
those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by
the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned
among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform
and progressive ratio while the sectors shall be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII,
Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the
members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have
been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred
and thirty five. Constitution and the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge
the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so
desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have been
lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may,
in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form
part of the law of the land.
7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and
composition may be altered by law.
Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be
called at any time the government deems it necessary to ascertain the will of the people regarding any
important matter whether of national or local interest.
8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force
and effect.
9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been
ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from
holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as
Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to
exercise the constituent power to propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The
Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in
nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the referendum-plebiscite is a step towards
normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was
instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the
power to propose amendments to, or revision of the Constitution during the transition period is expressly
conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent
President cannot act as a constituent assembly to propose amendments to the Constitution; a referendumplebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments
in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President
need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.
We find the petitions in the three entitled cases to be devoid of merit.
I
Justiciability of question raised.
1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V.
Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031,
and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such naturemay be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No.
1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards

80

taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees
are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of
judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial
question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally
exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to
propose amendments o the constitution resides in the interim National Assembly in the period of transition
(See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the
power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the
National Assembly to constitute itself into a constituent assembly the incumbent President undertook the
proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people
in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for
amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable
issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the
force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may
shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last
word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like
all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that power has been discharged within its
limits.
Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex
of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or
non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the
power of a constituent assembly. Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary
as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed
was valid or not. 10
We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the
question of the President's authority to propose amendments and the regularity of the procedure adopted for
submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore,
the constitutional provision has been followed or not is the proper subject of inquiry, not by the people
themselves of course who exercise no power of judicial but by the Supreme Court in whom the people
themselves vested that power, a power which includes the competence to determine whether the constitutional
norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e.,
before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the
Court's majority to treat such issue of Presidential role in the amending process as one of non-political
impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of
Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection
the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue

as justiciable in nature. Subsequently in the Ratification Cases 12involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the
constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question,
the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the
former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not
apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted
in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same as those given in support on the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this
Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in
the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all
its Members, call a constitutional convention or, by a majority vote of all its Members,
submit the question of calling such a convention to the electorate in an election.
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is
conferred with that amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy
and period of transition. In times of normally, the amending process may be initiated by the proposals of the

81

(1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional
Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling
of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote
of all the members of the National Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that
prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the
majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim National Assembly,
consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional
Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene the interim National Assembly; it was so
stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened
'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of
the interim National Assembly soon found support from the people themselves. In the plebiscite of January 1015, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly.
Again, in the referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates
of the Constitutional Convention, who were deemed automatically members of the I interim National
Assembly, were against its inclusion since in that referendum of January, 1973, the people had already
resolved against it.

power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No.
47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to
a decisive emergency action in behalf of the state and its independent existence. There are moments in the life
of any government when all powers must work together in unanimity of purpose and action, even if this means
the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete
the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their
fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and
presidential systems of government. In the former the all-important harmony of legislature and executive is
taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis
must not only be concentrated and expanded; it must also be freed from the normal system of constitutional
and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the
legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is
the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended
and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun
clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the powers vested in the President and the
Prime Minister under this Constitution until the calls upon the interim National
Assembly to elect the interim President and the interim Prime Minister, who shall then
exercise their respective powers vested by this Constitution.

3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a
Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the
amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily
it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment
amending of the Constitution is not legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character'. The distinction, however, is
one of policy, not of law. 17Such being the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19
III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government today are
more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power
in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches executive, legislature, and judiciary.
It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done
by the incumbent President shall be part of the law of the land, and shall remain valid,
binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National Assembly.
"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional
Convention, while giving to the President the discretion when to call the interim National Assembly to session,
and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of
the operation of the national forces, yet the facts of our political, social, and economic disturbances had
convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take
emergency measures 25
IV

82

Authority of the incumbent


President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly
during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the
judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the
power to propose amendments to the Constitution lies in the interim National Assembly upon special call by
the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the
President decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis
his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted
his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the
interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the
urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the
people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court
possesses no capacity to propose amendments without constitutional infractions. For the President to shy away
from that actuality and decline to undertake the amending process would leave the governmental machineries
at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a
crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February
1975, the people had already rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and
60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of
martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19
cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a
plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue
of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission
of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the
proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on
September 22, 1976 submitting the questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V
The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a
republican and unitary state, sovereignty "resides in the people and all government authority emanates from
them.30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular
sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the
people may thus write into the Constitution their convictions on any subject they choose in the absence of
express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all
life is all experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all future generations." A constitution is based, therefore,
upon a self-limiting decision of the people when they adopt it. 35
2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as
constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a
single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the
authority who can presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of
the people themselves implemented only by the authority of the President. Indeed, it may well be said that the
amending process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be
continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the
desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on the proposed amendments,
only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2,
Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years
old and above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of
current one and submitting to them for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot
boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen,
and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for
voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately
prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38
2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely
consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the
people foe their consideration, the calling of which is derived from or within the totality of the executive
power of the President. 39It is participated in by all citizens from the age of fifteen, regardless of whether or not
they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent
act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose

83

to vote for at least six months preceding the election Literacy, property or any other substantive requirement is
not imposed. It is generally associated with the amending process of the Constitution, more particularly, the
ratification aspect.

today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that
sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body

VII

IN RESUME

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom
to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice
Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure,
there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed
at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and
assembly The President himself had announced that he would not countenance any suppression of dissenting
views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the
people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil
Service Commission free to participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44

The three issues are

VIII
Time for deliberation

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?
2. During the present stage of the transition period, and under, the environmental circumstances now obtaining,
does the President possess power to propose amendments to the Constitution as well as set up the required
machinery and prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper submission?
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio
Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are
of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio
and Ramon C. Aquino hold the view that the question is political.

is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The
people have been living with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for
discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar,
in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three
consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional
amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the
creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment
affecting the economy as well as the independence of the Republic was publicized in three consecutive issues
of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the
plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of
such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The constituent body or in the instant cases, the President,
may fix the time within which the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be
widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments
are to be proposed, the reasonable implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it
must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma
voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in
Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to
propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr.
and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for
ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance of this Court, Associate Justice
Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's
lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no
fair and proper submission with sufficient information and time to assure intelligent consent or rejection under
the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41
SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice
Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is
immediately executory.
SO ORDERED.

84

G.R. No. L-56404 April 2, 1981


RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T.
DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners,
vs.
THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.:
The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa
Resolutions1 proposing constitutional amendments, goes further than merely assailing their alleged
constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine
Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing
as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not
the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an
approach has the arresting charm of novelty but nothing else. It is in fact self defeating, for if such were
indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply
that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor
are the arguments of petitioners cast in the traditional form of constitutional litigation any more persuasive. For
reasons to be set forth, we dismiss the petitions.
The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13
respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on
the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by
petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in
amplification of the oral argument, the cases were deemed submitted for decision.
OCCENA VS COMELEC

It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-56350 April 2, 1981


SAMUEL C. OCCENA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL
TREASURER, THE DIRECTOR OF PRINTING, respondents.

1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive
portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare
invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being
the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force
and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It
served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came
into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the
cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a
factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973
Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the
function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by
Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the
law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter

85

case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere
dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana.
Since then, this Court has invariably applied the present Constitution. The latest case in point is People v.
Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present
Constitution, at least ten cases may be cited. 13
2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how
it may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the
number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As
was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by
unconstitutionality.
(1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in
the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa
shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges,
and disqualifications as the interim National Assembly and the regular National Assembly and the Members
thereof."14 One of such powers is precisely that of proposing amendments. The 1973 Constitution in its
Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon
special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the
Article on Amendments. 15 When, therefore, theInterim Batasang Pambansa, upon the call of the President and
Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its
authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the
resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is
Concerned, the question of the authority of the Interim Batasang Pambansa to propose amendments is not new.
In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a
question was involved although not directly passed upon. To quote from the opinion of the Court penned by
Justice Antonio in that case: "Considering that the proposed amendment of Section 7 of Article X of the
Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from
sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935
Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as
through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and
disadvantages of the proposed amendment." 17

(3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for
proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The
language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa,
sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It
would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative
body applies as well when it has been convened as the agency through which amendments could be proposed.
That is not a requirement as far as a constitutional convention is concerned. It is not a requirement either when,
as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments.
Moreover, even on the assumption that the requirement of three- fourth votes applies, such extraordinary
majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a naturalborn citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential
purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime
Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution
No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention.
Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be
viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also
from the standpoint of such amendments having been called to the attention of the people so that it could not
plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the
Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable
provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of
the votes cast in a plebiscite which shall be held not later than three months after the approval of such
amendment or revision." 21 The three resolutions were approved by the InterimBatasang Pambansa sitting as a
constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite
is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to
the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in
the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age
of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at
the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said that
our people are unaware of the advantages and disadvantages of the proposed amendment [ s ]." 22
WHEREFORE, the petitions are dismissed for lack of merit. No costs.
PBA VS COMELEC

(2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character
that they go far beyond the limits of the authority conferred on the Interim Batasang Pambansa as Successor of
the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote
from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to
dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose
amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new
Constitution based on an Ideology foreign to the democratic system, is of no moment; because the same will
be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about
the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with
a new one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or total
overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised
or totally changed would become immaterial the moment the same is ratified by the sovereign
people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal
texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from
such a principle not only sound in theory but also advantageous in practice.

FACTS:
11 petitions were filed for prohibition against the enforcement of BP 883 which calls for special national
elections on February 7, 1986 (Snap elections) for the offices of President and Vice President of the
Philippines. BP 883 in conflict with the constitution in that it allows the President to continue holding office
after the calling of the special election.
Senator Pelaez submits that President Marcos letter of conditional resignation did not create the actual
vacancy required in Section 9, Article 7 of the Constitution which could be the basis of the holding of a special
election for President and Vice President earlier than the regular elections for such positions in 1987. The letter
states that the President is: irrevocably vacat(ing) the position of President effective only when the election is
held and after the winner is proclaimed and qualified as President by taking his oath office ten (10) days after
his proclamation.

86

The unified opposition, rather than insist on strict compliance with the cited constitutional provision that the
incumbent President actually resign, vacate his office and turn it over to the Speaker of the Batasang Pambansa
as acting President, their standard bearers have not filed any suit or petition in intervention for the purpose nor
repudiated the scheduled election. They have not insisted that President Marcos vacate his office, so long as
the election is clean, fair and honest.
ISSUE:

Republic of the Philippines


SUPREME COURT
Manila
G.R. No. 76180 October 24, 1986
IN RE: SATURNINO V. BERMUDEZ, petitioner.

Is BP 883 unconstitutional, and should the Supreme Court therefore stop and prohibit the holding of the
elections

R E S O L U T IO N

HELD:
The petitions in these cases are dismissed and the prayer for the issuance of an injunction restraining
respondents from holding the election on February 7, 1986, in as much as there are less than the required 10
votes to declare BP 883 unconstitutional.
The events that have transpired since December 3,as the Court did not issue any restraining order, have turned
the issue into a political question (from the purely justiciable issue of the questioned constitutionality of the act
due to the lack of the actual vacancy of the Presidents office) which can be truly decided only by the people in
their sovereign capacity at the scheduled election, since there is no issue more political than the election. The
Court cannot stand in the way of letting the people decide through their ballot, either to give the incumbent
president a new mandate or to elect a new president.

PER CURIAM:
In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer, quotes the first paragraph
of Section 5 (not Section 7 as erroneously stated) of Article XVIII of the proposed 1986 Constitution, which
provides in full as follows:
Sec. 5. The six-year term of the incumbent President and Vice-President elected in the February 7, 1986
election is, for purposes of synchronization of elections, hereby extended to noon of June 30, 1992.
The first regular elections for the President and Vice-President under this Constitution shall be held on the
second Monday of May, 1992.

LAWYERS LEAGUE VS PRES. AQUINO


http://docslide.us/documents/lawyers-league-vs-aquino-case-digest.html

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court "to declare and
answer the question of the construction and definiteness as to who, among the present incumbent President
Corazon Aquino and Vice-President Salvador Laurel and the elected President Ferdinand E. Marcos and VicePresident Arturo M. Tolentino being referred to under the said Section 7 (sic) of ARTICLE XVIII of the
TRANSITORY PROVISIONS of the proposed 1986 Constitution refers to, . ...
The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.
Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs. Macapagal, 43 SCRA
677), it is elementary that this Court assumes no jurisdiction over petitions for declaratory relief. More
importantly, the petition amounts in effect to a suit against the incumbent President of the Republic, President
Corazon C. Aquino, and it is equally elementary that incumbent Presidents are immune from suit or from being
brought to court during the period of their incumbency and tenure.

IN RE SATURNINO BERMUDEZ

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or vagueness of the
aforequoted provision is manifestly gratuitous, it being a matter of public record and common public
knowledge that the Constitutional Commission refers therein to incumbent President Corazon C. Aquino and
Vice-President Salvador H. Laurel, and to no other persons, and provides for the extension of their term to
noon of June 30, 1992 for purposes of synchronization of elections. Hence, the second paragraph of the cited
section provides for the holding on the second Monday of May, 1992 of the first regular elections for the
President and Vice-President under said 1986 Constitution. In previous cases, the legitimacy of the government

87

of President Corazon C. Aquino was likewise sought to be questioned with the claim that it was not established
pursuant to the 1973 Constitution. The said cases were dismissed outright by this court which held that:
Petitioners have no personality to sue and their petitions state no cause of action. For the legitimacy of the
Aquino government is not a justiciable matter. It belongs to the realm of politics where only the people of the
Philippines are the judge. And the people have made the judgment; they have accepted the government of
President Corazon C. Aquino which is in effective control of the entire country so that it is not merely a de
facto government but in fact and law a de jure government. Moreover, the community of nations has
recognized the legitimacy of tlie present government. All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the Republic under her government. (Joint Resolution of May
22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc. vs. President Corazon C. Aquino, et
al.]; G.R. No. 73972 [People's Crusade for Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.];
and G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et al.])
For the above-quoted reason, which are fully applicable to the petition at bar, mutatis mutandis, there can be no
question that President Corazon C. Aquino and Vice-President Salvador H. Laurel are the incumbent and
legitimate President and Vice-President of the Republic of the Philippines.or the above-quoted reasons, which
are fully applicable to the petition at bar,
ACCORDINGLY, the petition is hereby dismissed.

Copies of the certified returns from the provincial and city boards of canvassers have not been furnished this
Court nor is there any need to do so. In the absence of a legislature, we cannot assume the function of stating,
and neither do we have any factual or legal capacity to officially declare, who were elected President and Vice
President in the February 7, 1986 elections.
As to who are the incumbent President and Vice President referred to in the 1986 Draft Constitution, we agree
that there is no doubt the 1986 Constitutional Commission referred to President Corazon C. Aquino and Vice
President Salvador H. Laurel.
Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.
For the foregoing reasons, we vote to DISMISS the instant petition.
CRUZ, J., concurring:
I vote to dismiss this petition on the ground that the Constitution we are asked to interpret has not yet been
ratified and is therefore not yet effective. I see here no actual conflict of legal rights susceptible of judicial
determination at this time. (Aetna Life Insurance Co. vs. Haworth, 300 U.S. 227; PACU vs. Secretary of
Education, 97 Phil. 806.)

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.
MELENCIO-HERRERA, J., concurring:
GUTIERREZ, Jr., J., concurring:
FELICIANO, JJ., concurring.
The petitioner asks the Court to declare who are "the incumbent President and Vice President elected in the
February 7, 1986 elections" as stated in Article XVIII, Section 5 of the Draft Constitution adopted by the
Constitutional Commission of 1986.
We agree that the petition deserves outright dismissal as this Court has no original jurisdiction over petitions
for declaratory relief.
As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected President and Vice
President in the February 7, 1986 elections should be addressed not to this Court but to other departments of
government constitutionally burdened with the task of making that declaration.
The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution uniformly provide
'that boards of canvassers in each province and city shall certified who were elected President and Vice
President in their respective areas. The certified returns are transmitted to the legislature which proclaims,
through the designated Presiding Head, who were duty elected.

88

Also on February 8, 1987, respondent OIC Governor signed a Memorandum, antedated December 1, 1986
designating respondents Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S. Paz and
Teresita L. Tolentino as members of the Barangay Council of the same Barangay and Municipality.
That the Memoranda had been antedated is evidenced by the Affidavit of respondent OIC Governor, the
pertinent portions of which read:

DE LEON VS ESGUERRA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 78059 August 31, 1987
ALFREDO M. DE LEON, ANGEL S. SALAMAT, MARIO C. STA. ANA, JOSE C. TOLENTINO,
ROGELIO J. DE LA ROSA and JOSE M. RESURRECCION, petitioners,
vs.
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of the Province of Rizal, HON.
ROMEO C. DE LEON, in his capacity as OIC Mayor of the Municipality of Taytay, Rizal,
FLORENTINO G. MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, TEODORO V.
MEDINA, ROSENDO S. PAZ, and TERESITA L. TOLENTINO, respondents.

xxx xxx xxx


That I am the OIC Governor of Rizal having been appointed as such on March 20, 1986;
That as being OIC Governor of the Province of Rizal and in the performance of my
duties thereof, I among others, have signed as I did sign the unnumbered memorandum
ordering the replacement of all the barangay officials of all the barangay(s) in the
Municipality of Taytay, Rizal;
That the above cited memorandum dated December 1, 1986 was signed by me
personally on February 8,1987;
That said memorandum was further deciminated (sic) to all concerned the following
day, February 9. 1987.
FURTHER AFFIANT SAYETH NONE.

MELENCIO-HERRERA, J.:
An original action for Prohibition instituted by petitioners seeking to enjoin respondents from replacing them
from their respective positions as Barangay Captain and Barangay Councilmen of Barangay Dolores,
Municipality of Taytay, Province of Rizal.
As required by the Court, respondents submitted their Comment on the Petition, and petitioner's their Reply to
respondents' Comment.
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. De Leon was elected Barangay Captain
and the other petitioners Angel S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa and
Jose M. Resurreccion, as Barangay Councilmen of Barangay Dolores, Taytay, Rizal under Batas Pambansa
Blg. 222, otherwise known as the Barangay Election Act of 1982.
On February 9, 1987, petitioner Alfredo M, de Leon received a Memorandum antedated December 1, 1986 but
signed by respondent OIC Governor Benjamin Esguerra on February 8, 1987 designating respondent
Florentino G. Magno as Barangay Captain of Barangay Dolores, Taytay, Rizal. The designation made by the
OIC Governor was "by authority of the Minister of Local Government."

Pasig, Metro Manila, March 23, 1987.


Before us now, petitioners pray that the subject Memoranda of February 8, 1987 be declared null and void and
that respondents be prohibited from taking over their positions of Barangay Captain and Barangay
Councilmen, respectively. Petitioners maintain that pursuant to Section 3 of the Barangay Election Act of 1982
(BP Blg. 222), their terms of office "shall be six (6) years which shall commence on June 7, 1982 and shall
continue until their successors shall have elected and shall have qualified," or up to June 7, 1988. It is also their
position that with the ratification of the 1987 Constitution, respondent OIC Governor no longer has the
authority to replace them and to designate their successors.
On the other hand, respondents rely on Section 2, Article III of the Provisional Constitution, promulgated on
March 25, 1986, which provided:
SECTION 2. All elective and appointive officials and employees under the 1973
Constitution shall continue in office until otherwise provided by proclamation or
executive order or upon the designation or appointment and qualification of their
successors, if such appointment is made within a period of one year from February
25,1986.
By reason of the foregoing provision, respondents contend that the terms of office of elective and appointive
officials were abolished and that petitioners continued in office by virtue of the aforequoted provision and not

89

because their term of six years had not yet expired; and that the provision in the Barangay Election Act fixing
the term of office of Barangay officials to six (6) years must be deemed to have been repealed for being
inconsistent with the aforequoted provision of the Provisional Constitution.

Contrary to the stand of respondents, we find nothing inconsistent between the term of six (6) years for
elective Barangay officials and the 1987 Constitution, and the same should, therefore, be considered as still
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, reading:

Examining the said provision, there should be no question that petitioners, as elective officials under the 1973
Constitution, may continue in office but should vacate their positions upon the occurrence of any of the events
mentioned. 1
Since the promulgation of the Provisional Constitution, there has been no proclamation or executive order
terminating the term of elective Barangay officials. Thus, the issue for resolution is whether or not the
designation of respondents to replace petitioners was validly made during the one-year period which ended on
February 25, 1987.
Considering the candid Affidavit of respondent OIC Governor, we hold that February 8, 1977, should be
considered as the effective date of replacement and not December 1,1986 to which it was ante dated, in
keeping with the dictates of justice.

Sec. 3. All existing laws, decrees, executive orders, proclamations letters of instructions,
and other executive issuances not inconsistent, with this Constitution shall remain
operative until amended, repealed or revoked.
WHEREFORE, (1) The Memoranda issued by respondent OIC Governor on February 8, 1987 designating
respondents as the Barangay Captain and Barangay Councilmen, respectively, of Barangay Dolores, Taytay,
Rizal, are both declared to be of no legal force and effect; and (2) the Writ of Prohibition is granted enjoining
respondents perpetually from proceeding with the ouster/take-over of petitioners' positions subject of this
Petition. Without costs.
SO ORDERED.

But while February 8, 1987 is ostensibly still within the one-year deadline, the aforequoted provision in the
Provisional Constitution must be deemed to have been overtaken by Section 27, Article XVIII of the 1987
Constitution reading.

AMENDMENT TO THE CONSTITUTION


SECTION 27. This Constitution shall take effect immediately upon its ratification by a
majority of the votes cast in a plebiscite held for the purpose and shall supersede all
previous Constitutions.

GONZALES VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila

The 1987 Constitution was ratified in a plebiscite on February 2, 1987. By that date, therefore, the Provisional
Constitution must be deemed to have been superseded. Having become inoperative, respondent OIC Governor
could no longer rely on Section 2, Article III, thereof to designate respondents to the elective positions
occupied by petitioners.
Petitioners must now be held to have acquired security of tenure specially considering that the Barangay
Election Act of 1982 declares it "a policy of the State to guarantee and promote the autonomy of the barangays
to ensure their fullest development as self-reliant communities. 2 Similarly, the 1987 Constitution ensures the
autonomy of local governments and of political subdivisions of which the barangays form a part, 3 and limits
the President's power to "general supervision" over local governments. 4 Relevantly, Section 8, Article X of the
same 1987 Constitution further provides in part:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years ...
Until the term of office of barangay officials has been determined by law, therefore, the term of office of six
(6) years provided for in the Barangay Election Act of 1982 5 should still govern.

EN BANC
G.R. No. L-44640 October 12, 1976
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,
vs.
HONORABLE COMMISSION ON ELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
G.R. No. L-44684. October 12,1976
VICENTE M. GUZMAN, petitioner,
vs.
COMMISSION ELECTIONS, respondent.
G.R. No. L-44714. October 12,1976

90

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN, petitioners,


vs.
HONORABLE COMMISSION ON SELECTIONS and HONORABLE NATIONAL
TREASURER, respondents.
MARTIN, J,:
The capital question raised in these prohibition suits with preliminary injunction relates to the power of the
incumbent President of the Philippines to propose amendments to the present Constitution in the absence of
the interim National Assembly which has not been convened.
On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991 calling for a
national referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to resolve, among other
things, the issues of martial law, the I . assembly, its replacement, the powers of such replacement, the period
of its existence, the length of the period for tile exercise by the President of his present powers.1
Twenty days after or on September 22, 1976, the President issued another related decree, Presidential Decree
No. 1031, amending the previous Presidential Decree No. 991, by declaring the provisions of presidential
Decree No. 229 providing for the manner of voting and canvass of votes in "barangays" (Citizens Assemblies)
applicable to the national referendum-plebiscite of October 16, 1976. Quite relevantly, Presidential Decree No.
1031 repealed Section 4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the
footnote below. 2
On the same date of September 22, 1976, the President issued Presidential Decree No. 1033, stating the
questions to be submitted to the people in the referendum-plebiscite on October 16, 1976. The Decree recites
in its "whereas" clauses that the people's continued opposition to the convening of the National Assembly
evinces their desire to have such body abolished and replaced thru a constitutional amendment, providing for a
legislative body, which will be submitted directly to the people in the referendum-plebiscite of October 16.

and progressive ratio while the sectors shall be determined by law. The number of representatives from each
region or sector and the, manner of their election shall be prescribed and regulated by law.
2. The interim Batasang Pambansa shall have the same powers and its members shall have the same functions,
responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular
National Assembly and the members thereof. However, it shall not exercise the power provided in Article VIII,
Section 14(l) of the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the election and selection of the
members, convene the interim Batasang Pambansa and preside over its sessions until the Speaker shall have
been elected. The incumbent President of the Philippines shall be the Prime Minister and he shall continue to
exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its
functions and likewise he shall continue to exercise his powers and prerogatives under the nineteen hundred
and thirty five. Constitution and the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions, and discharge
the responsibilities of the regular President (Prime Minister) and his Cabinet, and shall be subject only to such
disqualifications as the President (Prime Minister) may prescribe. The President (Prime Minister) if he so
desires may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he may deem necessary.
5. The incumbent President shall continue to exercise legislative powers until martial law shall have been
lifted.
6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or
imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is
unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may,
in order to meet the exigency, issue the necessary decrees, orders or letters of instructions, which shall form
part of the law of the land.

The questions ask, to wit:


(1) Do you want martial law to be continued?

7. The barangays and sanggunians shall continue as presently constituted but their functions, powers, and
composition may be altered by law.

(2) Whether or not you want martial law to be continued, do you approve the following amendments to the
Constitution? For the purpose of the second question, the referendum shall have the effect of a plebiscite
within the contemplation of Section 2 of Article XVI of the Constitution.

Referenda conducted thru the barangays and under the Supervision of the Commission on Elections may be
called at any time the government deems it necessary to ascertain the will of the people regarding any
important matter whether of national or local interest.

PROPOSED AMENDMENTS:

8. All provisions of this Constitution not inconsistent with any of these amendments shall continue in full force
and effect.

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa. Members of the
interim Batasang Pambansa which shall not be more than 120, unless otherwise provided by law, shall include
the incumbent President of the Philippines, representatives elected from the different regions of the nation,
those who shall not be less than eighteen years of age elected by their respective sectors, and those chosen by
the incumbent President from the members of the Cabinet. Regional representatives shall be apportioned
among the regions in accordance with the number of their respective inhabitants and on the basis of a uniform

9. These amendments shall take effect after the incumbent President shall have proclaimed that they have been
ratified by I majority of the votes cast in the referendum-plebiscite."
The Commission on Elections was vested with the exclusive supervision and control of the October 1976
National Referendum-Plebiscite.

91

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son, commenced L44640 for Prohibition with Preliminary Injunction seeking to enjoin the Commission on Elections from
holding and conducting the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and 1033, insofar as they propose amendments to the Constitution, as well as
Presidential Decree No. 1031, insofar as it directs the Commission on Elections to supervise, control, hold, and
conduct the Referendum-Plebiscite scheduled on October 16, 1976.
Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent President to
exercise the constituent power to propose amendments to the new Constitution. As a consequence, the
Referendum-Plebiscite on October 16 has no constitutional or legal basis.
On October 5, 1976, the Solicitor General filed the comment for respondent Commission on Elections, The
Solicitor General principally maintains that petitioners have no standing to sue; the issue raised is political in
nature, beyond judicial cognizance of this Court; at this state of the transition period, only the incumbent
President has the authority to exercise constituent power; the referendum-plebiscite is a step towards
normalization.
On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as L-44684, was
instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional Convention, asserting that the
power to propose amendments to, or revision of the Constitution during the transition period is expressly
conferred on the interim National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the
implementation of Presidential Decrees relative to the forthcoming Referendum-Plebiscite of October 16.
These last petitioners argue that even granting him legislative powers under Martial Law, the incumbent
President cannot act as a constituent assembly to propose amendments to the Constitution; a referendumplebiscite is untenable under the Constitutions of 1935 and 1973; the submission of the proposed amendments
in such a short period of time for deliberation renders the plebiscite a nullity; to lift Martial Law, the President
need not consult the people via referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which confines the right of suffrage to those citizens of the Philippines 18
years of age and above.

constitutes a misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries all
appropriation of Five Million Pesos for the effective implementation of its purposes. 5 Presidential Decree No.
1031 appropriates the sum of Eight Million Pesos to carry out its provisions. 6 The interest of the aforenamed
petitioners as taxpayers in the lawful expenditure of these amounts of public money sufficiently clothes them
with that personality to litigate the validity of the Decrees appropriating said funds. Moreover, as regards
taxpayer's suits, this Court enjoys that open discretion to entertain the same or not. 7 For the present case, We
deem it sound to exercise that discretion affirmatively so that the authority upon which the disputed Decrees
are predicated may be inquired into.
2. The Solicitor General would consider the question at bar as a pure political one, lying outside the domain of
judicial review. We disagree. The amending process both as to proposal and ratification, raises a judicial
question. 8 This is especially true in cases where the power of the Presidency to initiate the of normally
exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the power to
propose amendments o the constitution resides in the interim National Assembly in the period of transition
(See. 15, Transitory provisions). After that period, and the regular National Assembly in its active session, the
power to propose amendments becomes ipso facto the prerogative of the regular National Assembly (Sec. 1,
pars. 1 and 2 of Art. XVI, 1973 constitution). The normal course has not been followed. Rather than calling the
National Assembly to constitute itself into a constituent assembly the incumbent President undertook the
proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033 to the people
in a Referendum-Plebiscite on October 16. Unavoidably, the regularity regularity of the procedure for
amendments, written in lambent words in the very Constitution sought to be amended, raises a contestable
issue. The implementing Presidential Decree Nos. 991, 1031, and 1033, which commonly purport to have the
force and effect of legislation are assailed as invalid, thus the issue of the validity of said Decrees is plainly a
justiciable one, within the competence of this Court to pass upon. Section 2 (2), Article X of the new
Constitution provides: "All cases involving the constitutionality of a treaty, executive agreement, or law may
shall be heard and decided by the Supreme Court en banc and no treaty, executive agreement, or law may be
declared unconstitutional without the concurrence of at least ten Members. ..." The Supreme Court has the last
word in the construction not only of treaties and statutes, but also of the Constitution itself The amending, like
all other powers organized in the Constitution, is in form a delegated and hence a limited power, so that the
Supreme Court is vested with that authorities to determine whether that power has been discharged within its
limits.

Justiciability of question raised.

Political questions are neatly associated with the wisdom, of the legality of a particular act. Where the vortex
of the controversy refers to the legality or validity of the contested act, that matter is definitely justiciable or
non-political. What is in the heels of the Court is not the wisdom of the act of the incumbent President in
proposing amendments to the Constitution, but his constitutional authority to perform such act or to assume the
power of a constituent assembly. Whether the amending process confers on the President that power to propose
amendments is therefore a downright justiciable question. Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the Constitution provides how it may be amended, the judiciary
as the interpreter of that Constitution, can declare whether the procedure followed or the authority assumed
was valid or not. 10

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and Pablito V.
Sanidad) possess locus standi to challenge the constitutional premise of Presidential Decree Nos. 991, 1031,
and 1033. It is now an ancient rule that the valid source of a stature Presidential Decrees are of such naturemay be contested by one who will sustain a direct injuries as a in result of its enforcement. At the instance of
taxpayers, laws providing for the disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer of the State for the purpose of executing an unconstitutional act

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability, that the
question of the President's authority to propose amendments and the regularity of the procedure adopted for
submission of the proposal to the people ultimately lie in the judgment of the A clear Descartes fallacy
of vicious circle. Is it not that the people themselves, by their sovereign act, provided for the authority and
procedure for the amending process when they ratified the present Constitution in 1973? Whether, therefore,
the constitutional provision has been followed or not is the proper subject of inquiry, not by the people

We find the petitions in the three entitled cases to be devoid of merit.


I

92

themselves of course who exercise no power of judicial but by the Supreme Court in whom the people
themselves vested that power, a power which includes the competence to determine whether the constitutional
norms for amendments have been observed or not. And, this inquiry must be done a prior not a posterior i.e.,
before the submission to and ratification by the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases underline the preference of the
Court's majority to treat such issue of Presidential role in the amending process as one of non-political
impression. In the Plebiscite Cases, 11 the contention of the Solicitor General that the issue on the legality of
Presidential Decree No. 73 "submitting to the Pilipino people (on January 15, 1973) for ratification or rejection
the Constitution of the Republic of the Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the Court unanimously considered the issue
as justiciable in nature. Subsequently in the Ratification Cases 12involving the issue of whether or not the
validity of Presidential Proclamation No. 1102. announcing the Ratification by the Filipino people of the
constitution proposed by the 1971 Constitutional Convention," partakes of the nature of a political question,
the affirmative stand of' the Solicitor General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus, in the aforementioned
plebiscite cases, We rejected the theory of the respondents therein that the question whether Presidential
Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or not, was not a proper subject of judicial inquiry because, they
claimed, it partook of a political nature, and We unanimously declared that the issue was a justiciable one.
With Identical unanimity. We overruled the respondent's contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual bases of the Presidential
proclamation suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda, insofar as it adhered to the
former case, which view We, accordingly, abandoned and refused to apply. For the same reason, We did not
apply and expressly modified, in Gonzales vs. Commission on Elections, the political-question theory adopted
in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by the Court. Chief Justice Concepcion continued: "The reasons
adduced in support thereof are, however, substantially the same as those given in support on the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully considered by this
Court and found by it to be legally unsound and constitutionally untenable. As a consequence. Our decisions in
the aforementioned habeas corpus cases partakes of the nature and effect of a stare decisis which gained added
weight by its virtual reiteration."
II
The amending process as laid out
in the new Constitution.
1. Article XVI of the 1973 Constitution on Amendments ordains:
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed
by the National Assembly upon a vote of three-fourths of all its Members, or by a
constitutional convention. (2) The National Assembly may, by a vote of two-thirds of all
its Members, call a constitutional convention or, by a majority vote of all its Members,
submit the question of calling such a convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than
three months after the approval of such amendment or revision.
In the present period of transition, the interim National Assembly instituted in the Transitory Provisions is
conferred with that amending power. Section 15 of the Transitory Provisions reads:
SECTION 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of all its Members, propose amendments to this
Constitution. Such amendments shall take effect when ratified in accordance with
Article Sixteen hereof.
There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period of normalcy
and period of transition. In times of normally, the amending process may be initiated by the proposals of the
(1) regular National Assembly upon a vote of three-fourths of all its members; or (2) by a Constitutional
Convention called by a vote of two-thirds of all the Members of the National Assembly. However the calling
of a Constitutional Convention may be submitted to the electorate in an election voted upon by a majority vote
of all the members of the National Assembly. In times of transition, amendments may be proposed by a
majority vote of all the Members of the National Assembly upon special call by the interim Prime Minister,.
2. This Court in Aquino v. COMELEC," had already settled that the incumbent President is vested with that
prerogative of discretion as to when he shall initially convene the interim National Assembly. Speaking for the
majority opinion in that case, Justice Makasiar said: "The Constitutional Convention intended to leave to the
President the determination of the time when he shall initially convene the interim National Assembly,
consistent with the prevailing conditions of peace and order in the country." Concurring, Justice Fernandez,
himself a member of that Constitutional Convention, revealed: "(W)hen the Delegates to the Constitutional
Convention voted on the Transitory Provisions, they were aware of the fact that under the same, the incumbent
President was given the discretion as to when he could convene the interim National Assembly; it was so
stated plainly by the sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be convened
'immediately', made by Delegate Pimentel (V) was rejected. The President's decision to defer the convening of
the interim National Assembly soon found support from the people themselves. In the plebiscite of January 1015, 1973, at which the ratification of the 1973 Constitution was submitted, the people voted against the
convening of the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim National Assembly.
Again, in the referendum of February 27, 1975, the proposed question of whether the interim National
Assembly shall be initially convened was eliminated, because some of the members of Congress and delegates
of the Constitutional Convention, who were deemed automatically members of the I interim National
Assembly, were against its inclusion since in that referendum of January, 1973, the people had already
resolved against it.
3. In sensu strictiore, when the legislative arm of the state undertakes the proposals of amendment to a
Constitution, that body is not in the usual function of lawmaking. lt is not legislating when engaged in the
amending process.16 Rather, it is exercising a peculiar power bestowed upon it by the fundamental charter
itself. In the Philippines, that power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of the Transitory Provisions (for the National Assembly). While ordinarily
it is the business of the legislating body to legislate for the nation by virtue of constitutional conferment
amending of the Constitution is not legislative in character. In political science a distinction is made between

93

constitutional content of an organic character and that of a legislative character'. The distinction, however, is
one of policy, not of law. 17Such being the case, approval of the President of any proposed amendment is a
misnomer 18 The prerogative of the President to approve or disapprove applies only to the ordinary cases of
legislation. The President has nothing to do with proposition or adoption of amendments to the Constitution. 19

Assembly to elect the interim President and the interim Prime Minister, who shall then
exercise their respective powers vested by this Constitution.
All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done
by the incumbent President shall be part of the law of the land, and shall remain valid,
binding, and effective even after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent proclamations,
orders, decrees, instructions, or other acts of the incumbent President, or unless
expressly and explicitly modified or repealed by the regular National Assembly.

III
Concentration of Powers
in the President during
crisis government.
1. In general, the governmental powers in crisis government the Philippines is a crisis government today are
more or less concentrated in the President. 20 According to Rossiter, "(t)he concentration of government power
in a democracy faced by an emergency is a corrective to the crisis inefficiencies inherent in the doctrine of the
separation of powers. In most free states it has generally been regarded as imperative that the total power of the
government be parceled out among three mutually independent branches executive, legislature, and judiciary.
It is believed to be destructive of constitutionalism if any one branch should exercise any two or more types of
power, and certainly a total disregard of the separation of powers is, as Madison wrote in the Federalist, No.
47, 'the very definition of tyranny.' In normal times the separation of powers forms a distinct obstruction to
arbitrary governmental action. By this same token, in abnormal times it may form an insurmountable barrier to
a decisive emergency action in behalf of the state and its independent existence. There are moments in the life
of any government when all powers must work together in unanimity of purpose and action, even if this means
the temporary union of executive, legislative, and judicial power in the hands of one man. The more complete
the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their
fusion in time of crisis. This is evident in a comparison of the crisis potentialities of the cabinet and
presidential systems of government. In the former the all-important harmony of legislature and executive is
taken for granted; in the latter it is neither guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential dictatorship. The power of the state in crisis
must not only be concentrated and expanded; it must also be freed from the normal system of constitutional
and legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a broad
discretion capable even of setting aside the ordinary laws in the meeting of special exigencies for which the
legislative power had not provided. 22 The rationale behind such broad emergency powers of the Executive is
the release of the government from "the paralysis of constitutional restrains" so that the crisis may be ended
and normal times restored.
2. The presidential exercise of legislative powers in time of martial law is now a conceded valid at. That sun
clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus: 23
The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have been
elected. He shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty-five Constitution and the powers vested in the President and the
Prime Minister under this Constitution until the calls upon the interim National

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the Constitutional
Convention, while giving to the President the discretion when to call the interim National Assembly to session,
and knowing that it may not be convened soon, would create a vacuum in the exercise of legislative powers.
Otherwise, with no one to exercise the lawmaking powers, there would be paralyzation of the entire
governmental machinery." 24 Paraphrasing Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of executive and legislature ordained in the
Constitution presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for as the steady increase in the magnitude and complexity of the problems the
President has been called upon by the Filipino people to solve in their behalf, which involve rebellion,
subversion, secession, recession, inflation, and economic crisis-a crisis greater than war. In short, while
conventional constitutional law just confines the President's power as Commander-in-Chief to the direction of
the operation of the national forces, yet the facts of our political, social, and economic disturbances had
convincingly shown that in meeting the same, indefinite power should be attributed to tile President to take
emergency measures 25
IV
Authority of the incumbent
President t to propose
amendments to the Constitution.
1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim National Assembly
during the transition period. However, the initial convening of that Assembly is a matter fully addressed to the
judgment of the incumbent President. And, in the exercise of that judgment, the President opted to defer
convening of that body in utter recognition of the people's preference. Likewise, in the period of transition, the
power to propose amendments to the Constitution lies in the interim National Assembly upon special call by
the President (See. 15 of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the
President decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim Assembly vis-a-vis
his assumption of that body's legislative functions? The answer is yes. If the President has been legitimately
discharging the legislative functions of the interim Assembly, there is no reason why he cannot validly
discharge the function of that Assembly to propose amendments to the Constitution, which is but adjunct,
although peculiar, to its gross legislative power. This, of course, is not to say that the President has converted
his office into a constituent assembly of that nature normally constituted by the legislature. Rather, with the

94

interim National Assembly not convened and only the Presidency and the Supreme Court in operation, the
urges of absolute necessity render it imperative upon the President to act as agent for and in behalf of the
people to propose amendments to the Constitution. Parenthetically, by its very constitution, the Supreme Court
possesses no capacity to propose amendments without constitutional infractions. For the President to shy away
from that actuality and decline to undertake the amending process would leave the governmental machineries
at a stalemate or create in the powers of the State a destructive vacuum, thereby impeding the objective of a
crisis government "to end the crisis and restore normal times." In these parlous times, that Presidential
initiative to reduce into concrete forms the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are mere agents of the people .26
2. The President's action is not a unilateral move. As early as the referendums of January 1973 and February
1975, the people had already rejected the calling of the interim National Assembly. The Lupong
Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay, and the
Pambansang Katipunan ng mga Barangay, representing 42,000 barangays, about the same number of
Kabataang Barangay organizations, Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and
60 cities had informed the President that the prevailing sentiment of the people is for the abolition of the
interim National Assembly. Other issues concerned the lifting of martial law and amendments to the
Constitution .27 The national organizations of Sangguniang Bayan presently proposed to settle the issues of
martial law, the interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16 . 28 The Batasang
Bayan (legislative council) created under Presidential Decree 995 of September 10, 1976, composed of 19
cabinet members, 9 officials with cabinet rank, 91 members of the Lupong Tagapagpaganap (executive
committee) of the Katipunan ng mga Sangguniang Bayan voted in session to submit directly to the people in a
plebiscite on October 16, the previously quoted proposed amendments to the Constitution, including the issue
of martial law .29 Similarly, the "barangays" and the "sanggunians" endorsed to the President the submission
of the proposed amendments to the people on October 16. All the foregoing led the President to initiate the
proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree No, 1033 on
September 22, 1976 submitting the questions (proposed amendments) to the people in the National
Referendum-Plebiscite on October 16.
V

single man. Rather, they are the collated thoughts of the sovereign will reduced only into enabling forms by the
authority who can presently exercise the powers of the government. In equal vein, the submission of those
proposed amendments and the question of martial law in a referendum-plebiscite expresses but the option of
the people themselves implemented only by the authority of the President. Indeed, it may well be said that the
amending process is a sovereign act, although the authority to initiate the same and the procedure to be
followed reside somehow in a particular body.
VI
Referendum-Plebiscite not
rendered nugatory by the
participation of the 15-year olds.
1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do you want martial law to be
continued? - is a referendum question, wherein the 15-year olds may participate. This was prompted by the
desire of the Government to reach the larger mas of the people so that their true pulse may be felt to guide the
President in pursuing his program for a New Order. For the succeeding question on the proposed amendments,
only those of voting age of 18 years may participate. This is the plebiscite aspect, as contemplated in Section 2,
Article XVI of the new Constitution. 36 On this second question, it would only be the votes of those 18 years
old and above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not infirm the
referendum-plebiscite. There is nothing objectionable in consulting the people on a given issue, which is of
current one and submitting to them for ratification of proposed constitutional amendments. The fear of
commingled votes (15-year olds and 18-year olds above) is readily dispelled by the provision of two ballot
boxes for every barangay center, one containing the ballots of voters fifteen years of age and under eighteen,
and another containing the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for
voters fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the referendum-plebiscite shall be separately
prepared for the age groupings, i.e., ballots contained in each of the two boxes. 38

The People is Sovereign


1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the Philippines, a
republican and unitary state, sovereignty "resides in the people and all government authority emanates from
them.30 In its fourth meaning, Savigny would treat people as "that particular organized assembly of
individuals in which, according to the Constitution, the highest power exists." 31 This is the concept of popular
sovereignty. It means that the constitutional legislator, namely the people, is sovereign 32 In consequence, the
people may thus write into the Constitution their convictions on any subject they choose in the absence of
express constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment, as all
life is all experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do not require that one
generation should be permitted to permanently fetter all future generations." A constitution is based, therefore,
upon a self-limiting decision of the people when they adopt it. 35

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is merely


consultative in character. It is simply a means of assessing public reaction to the given issues submitted to the
people foe their consideration, the calling of which is derived from or within the totality of the executive
power of the President. 39It is participated in by all citizens from the age of fifteen, regardless of whether or not
they are illiterates, feeble-minded, or ex- convicts . 40 A "plebiscite," on the other hand, involves the constituent
act of those "citizens of the Philippines not otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least one year and in the place wherein they propose
to vote for at least six months preceding the election Literacy, property or any other substantive requirement is
not imposed. It is generally associated with the amending process of the Constitution, more particularly, the
ratification aspect.
VII

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their sovereign power as
constitutional legislator. The proposed amendments, as earlier discussed, proceed not from the thinking of a

95

1. There appeals to be no valid basis for the claim that the regime of martial law stultifies in main the freedom
to dissent. That speaks of a bygone fear. The martial law regime which, in the observation of Justice
Fernando, 41 is impressed with a mild character recorded no State imposition for a muffled voice. To be sure,
there are restraints of the individual liberty, but on certain grounds no total suppression of that liberty is aimed
at. The for the referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and
assembly The President himself had announced that he would not countenance any suppression of dissenting
views on the issues, as he is not interested in winning a "yes" or "no" vote, but on the genuine sentiment of the
people on the issues at hand. 42 Thus, the dissenters soon found their way to the public forums, voicing out
loud and clear their adverse views on the proposed amendments and even (in the valid ratification of the 1973
Constitution, which is already a settled matter. 43 Even government employees have been held by the Civil
Service Commission free to participate in public discussion and even campaign for their stand on the
referendum-plebiscite issues. 44
VIII
Time for deliberation

sentiment may fairly be supposed to exist. it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by proper body
IN RESUME
The three issues are
1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033 political or
justiciable?
2. During the present stage of the transition period, and under, the environmental circumstances now obtaining,
does the President possess power to propose amendments to the Constitution as well as set up the required
machinery and prescribe the procedure for the ratification of his proposals by the people?
3. Is the submission to the people of the proposed amendments within the time frame allowed therefor a
sufficient and proper submission?

is not short.
1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free debates or
discussions on the referendum-plebiscite issues. The questions are not new. They are the issues of the day. The
people have been living with them since the proclamation of martial law four years ago. The referendums of
1973 and 1975 carried the same issue of martial law. That notwithstanding, the contested brief period for
discussion is not without counterparts in previous plebiscites for constitutional amendments. Justice Makasiar,
in the Referendum Case, recalls: "Under the old Society, 15 days were allotted for the publication in three
consecutive issues of the Official Gazette of the women's suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to append as
ordinance the complicated Tydings-Kocialskowski was published in only three consecutive issues of the
Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act 492). For the 1940 Constitutional
amendments providing for the bicameral Congress, the reelection of the President and Vice President, and the
creation of the Commission on Elections, 20 days of publication in three consecutive issues of the Official
Gazette was fixed (Com Act No. 517). And the Parity Amendment, an involved constitutional amendment
affecting the economy as well as the independence of the Republic was publicized in three consecutive issues
of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45
2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific date when the
plebiscite shall be held, but simply states that it "shall be held not later than three months after the approval of
such amendment or revision." In Coleman v. Miller, 46 the United States Supreme court held that this matter of
submission involves "an appraisal of a great variety of relevant conditions, political, social and economic,"
which "are essentially political and not justiciable." The constituent body or in the instant cases, the President,
may fix the time within which the people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they are not to be
widely separated in time; second, it is only when there is deemed to be a necessity therefor that amendments
are to be proposed, the reasonable implication being that when proposed, they are to be considered and
disposed of presently, and third, ratification is but the expression of the approbation of the people, hence, it
must be done contemporaneously. 47 In the words of Jameson, "(a)n alteration of the Constitution proposed
today has relation to the sentiment and the felt needs of today, and that, if not ratified early while that

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando, Claudio
Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G. Martin are
of the view that the question posed is justiciable, while Associate Justices Felix V. Makasiar, Felix Q. Antonio
and Ramon C. Aquino hold the view that the question is political.
Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee and Munoz Palma
voted in the negative. Associate Justice Fernando, conformably to his concurring and dissenting opinion in
Aquino vs. Enrile (59 SCRA 183), specifically dissents from the proposition that there is concentration of
powers in the Executive during periods of crisis, thus raising serious doubts as to the power of the President to
propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino, Concepcion Jr.
and Martin are of the view that there is a sufficient and proper submission of the proposed amendments for
ratification by the people. Associate Justices Barredo and Makasiar expressed the hope, however that the
period of time may be extended. Associate Justices Fernando, Makasiar and Antonio are of the view that the
question is political and therefore beyond the competence and cognizance of this Court, Associate Justice
Fernando adheres to his concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC
(21 SCRA 774).Associate Justices Teehankee and MUNOZ Palma hold that prescinding from the President's
lack of authority to exercise the constituent power to propose the amendments, etc., as above stated, there is no
fair and proper submission with sufficient information and time to assure intelligent consent or rejection under
the standards set by this Court in the controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41
SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin
voted to dismiss the three petitions at bar. For reasons as expressed in his separate opinion, Associate Justice
Fernando concurs in the result. Associate Justices Teehankee and Munoz Palma voted to grant the petitions.

96

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This decision is
immediately executory.
SO ORDERED.

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL


ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,
in their capacities as founding members of the People's Initiative for Reforms, Modernization and
Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:


The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of
Court is the right of the people to directly propose amendments to the Constitution through the system
of initiative under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people of this country, except perhaps to a few
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the
original proponent 1 and the main sponsor 2 of the proposed Article on Amendments or Revision of the
Constitution, characterized this system as "innovative". 3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by a constitutional
convention. 4 For this and the other reasons hereafter discussed, we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent Commission on
Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
SANTIAGO VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 127325 March 19, 1997

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist


Petitioners and volunteers, in establishing signing stations at the time and on the dates
designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a group of
citizens desirous to avail of the system intended to institutionalize people power; that he and the members of
the Movement and other volunteers intend to exercise the power to directly propose amendments to the
Constitution granted under Section 2, Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the COMELEC; that, as required in COMELEC
Resolution No. 2300, signature stations shall be established all over the country, with the assistance of

97

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

Amendments by People's Initiative, which petitioner Senator Santiago filed on 24


November 1995, is still pending before the Senate Committee on Constitutional
Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed this
deficiency in the law in his privilege speech delivered before the Senate in 1994: "There
is not a single word in that law which can be considered as implementing [the provision
on constitutional initiative]. Such implementing provisions have been obviously left to a
separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar asinitiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only Congress is authorized
by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds
for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event
the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA would entail expenses
to the national treasury for general re-registration of voters amounting to at least P180 million, not to mention
the millions of additional pesos in expenses which would be incurred in the conduct of the initiative itself.
Hence, the transcendental importance to the public and the nation of the issues raised demands that this
petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy, and
adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the petition within a nonextendible period of ten days from notice; and (b) issued a temporary restraining order, effective immediately

98

and continuing until further orders, enjoining public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa from conducting a signature drive for people's
initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment 15 on the petition. They
argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE NATIONAL
TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT
LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE
"COMELEC GRANTS THE PETITION FILED BY RESPONDENT DELFIN
BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF RESPONDENT
DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE
ACCOUNT OF RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE
SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS
P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO
SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION"
UPHELD BY THE HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS.COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE
AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN
THE RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO
NO LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING
GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."

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


CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER TO
"PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290,
ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A
"REVISION" OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT.
"AMENDMENT ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC
PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A REEXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE HOW AND TO
WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097
PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts off with
an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the 1987
Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and function. On the
substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs
the conduct of initiative to amend the Constitution. The absence therein of a subtitle for
such initiative is not fatal, since subtitles are not requirements for the validity or
sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in the
plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be necessary
to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution,
or more specifically, only those which lay term limits. It does not seek to reexamine or
overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180 million
as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a plebiscite it will be

99

simultaneous with the 1997 Barangay Elections. In any event, fund requirements for initiative will be a priority
government expense because it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees that
power; and its Section 3, which enumerates the three systems of initiative, includes
initiative on the Constitution and defines the same as the power to propose amendments
to the Constitution. Likewise, its Section 5 repeatedly mentions initiative on the
Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the
subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735
does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the COMELEC
to implement the provisions of R.A. No. 6735 was in fact upheld by this Court in Subic
Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b) noted the
aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by private respondents
through Atty. Quadra, as well as the latter's Manifestation stating that he is the counsel for private respondents
Alberto and Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted the Motion
for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition in
Intervention not later than 20 January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of Attorneys
for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention. Attached to the
motion was their Petition in Intervention, which was later replaced by an Amended Petition in Intervention
wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts
unlimited tenure; and although the change might appear to be an isolated one, it can

affect other provisions, such as, on synchronization of elections and on the State policy
of guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 Arevision cannot be done by initiative which, by express provision of
Section 2 of Article XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits provided for all
other national and local elective officials are based on the philosophy of governance, "to
open up the political arena to as many as there are Filipinos qualified to handle the
demands of leadership, to break the concentration of political and economic powers in
the hands of a few, and to promote effective proper empowerment for participation in
policy and decision-making for the common good"; hence, to remove the term limits is
to negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in a
conflict-of-interest situation. Initiative is intended as a fallback position that may be
availed of by the people only if they are dissatisfied with the performance of their
elective officials, but not as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people's initiative on amendments to the Constitution. It fails to state (a)
the proper parties who may file the petition, (b) the appropriate agency before whom the
petition is to be filed, (c) the contents of the petition, (d) the publication of the same, (e)
the ways and means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the veracity of the
signatures, (g) the role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the COMELEC, (I) the
holding of a plebiscite, and (g) the appropriation of funds for such people's initiative.
Accordingly, there being no enabling law, the COMELEC has no jurisdiction to hear
Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiativeunder Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to initiate
constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he coauthored the House Bill and even delivered a sponsorship speech thereon. He likewise submits that the
COMELEC was empowered under Section 20 of that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is without jurisdiction to take cognizance of the
Delfin Petition and to order its publication because the said petition is not the initiatory pleading contemplated
under the Constitution, Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction
upon the COMELEC in an initiative on the Constitution is the filing of a petition for initiative which
is signedby the required number of registered voters. He also submits that the proponents of a constitutional

100

amendment cannot avail of the authority and resources of the COMELEC to assist them is securing the
required number of signatures, as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of a plebiscite, if
warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII
of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by the DIK
and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b) admitting the
Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention of Senator Roco and
of the IBP; (c) requiring the respondents to file within a nonextendible period of five days their Consolidated
Comments on the aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition in
Intervention within a nonextendible period of three days from notice, and the respondents to comment thereon
within a nonextendible period of five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues, which the
Court formulated in light of the allegations and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision
of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature gathering;
(b) instructing municipal election officers to assist Delfin's movement and volunteers in
establishing signature stations; and (c) directing or causing the publication of, inter alia,
the unsigned proposed Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective memoranda
within twenty days and requested intervenor Senator Roco to submit copies of the deliberations on House Bill
No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and arguments
in the main Petition. It further submits that the COMELEC should have dismissed the Delfin Petition for
failure to state a sufficient cause of action and that the Commission's failure or refusal to do so constituted
grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record of the
House of Representatives relating to the deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference Committee, Committee on Suffrage and
Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the Petitions in
Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in due time, their
separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which appears to
pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF
THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth issue, i.e.,
whether it is proper for this Court to take cognizance of this special civil action when there is a pending case
before the COMELEC. The petitioners provide an affirmative answer. Thus:

101

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition for
prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing the
inferior tribunal from usurping a jurisdiction with which it is not legally vested. (People
v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the body politic of the questioned
Comelec order. The consequent climate of legal confusion and political instability begs
for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin Petition on
the ground that the COMELEC has no jurisdiction or authority to entertain the petition. 26 The COMELEC
made no ruling thereon evidently because after having heard the arguments of Delfin and the oppositors at the
hearing on 12 December 1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically gave due course to the
Delfin Petition by ordering Delfin to cause the publication of the petition, together with the attached Petition
for Initiative, the signature form, and the notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on to the petition rendered
ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no appeal
or any other plain, speedy and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the Delfin
Petition because the said petition is not supported by the required minimum number of signatures of registered
voters. LABAN also asserts that the COMELEC gravely abused its discretion in refusing to dismiss the Delfin
Petition, which does not contain the required number of signatures. In light of these claims, the instant case
may likewise be treated as a special civil action for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush aside
technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality because
the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS
TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented by at
least three per centum of the registered voters therein. No amendment under this section
shall be authorized within five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional
action, in the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution through
the system of initiative would remain entombed in the cold niche of the Constitution until Congress
provides for its implementation. Stated otherwise, while the Constitution has recognized or granted
that right, the people cannot exercise it if Congress, for whatever reason, does not provide for its
implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or Revision
proposed by the Committee on Amendments and Transitory Provisions of the 1986 Constitutional Commission
in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or
(b) by a constitutional convention; or

102

(c) directly by the people themselves thru initiative as provided for in Article___ Section
___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted a new
formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we
respectfully call attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this
afternoon a complete Committee Report No. 7 which embodies
the proposed provision governing the matter of initiative. This is
now covered by Section 2 of the complete committee report. With
the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7. 32
The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the legislature.
Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of at
least 10 percent, there are no details in the provision on how to
carry this out. Do we understand, therefore, that we are leaving
this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as
long as the legislature does not pass the necessary implementing
law on this, this will not operate?
MR. SUAREZ. That matter was also taken up during the
committee hearing, especially with respect to the budget
appropriations which would have to be legislated so that the
plebiscite could be called. We deemed it best that this matter be
left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be
called until after five years from the date of the ratification of this
Constitution. Therefore, the first amendment that could be

proposed through the exercise of this initiative power would be


after five years. It is reasonably expected that within that fiveyear period, the National Assembly can come up with the
appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the
details on how this is to be carried out is it possible that, in
effect, what will be presented to the people for ratification is the
work of the legislature rather than of the people? Does this
provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because
even the legislature itself as a body could propose that
amendment, maybe individually or collectively, if it fails to
muster the three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to the people for
ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the
intention in the proposal is to vest constituent power in the people
to amend the Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the
proposal in terms of institutionalizing popular participation in the
drafting of the Constitution or in the amendment thereof, but I
would have a lot of difficulties in terms of accepting the draft of
Section 2, as written. Would the sponsor agree with me that in the
hierarchy of legal mandate, constituent power has primacy over
all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.

103

MS. AQUINO. Such that in order to underscore the primacy of


constituent power we have a separate article in the constitution
that would specifically cover the process and the modes of
amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the
provisions are drafted now, to again concede to the legislature the
process or the requirement of determining the mechanics of
amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well
be placed in the hands of the National Assembly, not unless we
can incorporate into this provision the mechanics that would
adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to
AMEND not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory
that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from
the traditional modes of amending the Constitution as embodied
in Section 1. The committee members felt that this system of
initiative should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of
the proposed Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by
providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable to
accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as
another separate section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we
clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the
sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to

include the process of revision; whereas theprocess of initiation


to amend, which is given to the public, would only apply to
amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in
the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide,
Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to
substitute the entire Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications submitted
by the sponsor himself and the honorable Commissioners
Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The
modified amendment in substitution of the proposed Section 2
will now read as follows: "SECTION 2. AMENDMENTS TO
THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON
A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER Of REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT.
MR. SUAREZ. Madam President, considering that the proposed
amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was
a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it
possible for the legislature to set forth certain procedures to carry
out the initiative. . .?

104

MR. DAVIDE. It can.


xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not
prevent the legislature from asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to
legislation, provided the legislature cannot determine anymore the
percentage of the requirement.
MR. ROMULO. But the procedures, including the determination
of the proper form for submission to the people, may be subject to
legislation.
MR. DAVIDE. As long as it will not destroy the substantive right
to initiate. In other words, none of the procedures to be proposed
by the legislative body must diminish or impair the right
conceded here.
MR. ROMULO. In that provision of the Constitution can the
procedures which I have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to NOT REVISION of the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's
proposed amendment on line 1 refers to "amendment." Does it not
cover the word "revision" as defined by Commissioner Padilla
when he made the distinction between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative
is concerned, it can only relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing amendments through initiative must
be more rigorous and difficult than the initiative on legislation. Thus:

MR. DAVIDE. A distinction has to be made that under this


proposal, what is involved is an amendment to the Constitution.
To amend a Constitution would ordinarily require a proposal by
the National Assembly by a vote of three-fourths; and to call a
constitutional convention would require a higher number.
Moreover, just to submit the issue of calling a constitutional
convention, a majority of the National Assembly is required, the
import being that the process of amendment must be made more
rigorous and difficult than probably initiating an ordinary
legislation or putting an end to a law proposed by the National
Assembly by way of a referendum. I cannot agree to reducing the
requirement approved by the Committee on the Legislative
because it would require another voting by the Committee, and
the voting as precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on
the Legislative or on the National Assembly on plenary
sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final version, which
the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as
amended, reads as follows: "AMENDMENT TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON
A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
BY AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second reading on 9
July 1986.41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was allowed to
introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view thereof, the
Article was again approved on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by changing
"percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the second paragraph

105

so that said paragraph reads: The Congress 43 shall provide for the implementation of the exercise of this
right. 44 This amendment was approved and is the text of the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under Section 2 of
Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those who answer the question
in the affirmative, like the private respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than through the
passage of a statute or legislative act. This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of Article XVII then reading:

Sec. 2. Statement and Policy. The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as to amendments on
the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals
to AMEND. The people are not accorded the power to "directly propose, enact, approve, or reject,
in whole or in part, the Constitution" through the system of initiative. They can only do so with
respect to "laws, ordinances, or resolutions."

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

The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1 of Senate
Bill No. 17, which solely referred to a statement of policy on local initiative and referendum and appropriately
used the phrases "propose and enact," "approve or reject" and "in whole or in part." 52

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

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

with

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose amendments to
the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate Bill No. 17. The former was
prepared by the Committee on Suffrage and Electoral Reforms of the House of Representatives on the basis of
two House Bills referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the
subject matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of Article X
(Local Government) and initiative provided for in Section 2 of Article XVII of the Constitution. Senate Bill
No. 17 49 solely dealt with initiative and referendum concerning ordinances or resolutions of local government
units. The Bicameral Conference Committee consolidated Senate Bill No. 17 and House Bill No. 21505 into a
draft bill, which was subsequently approved on 8 June 1989 by the Senate 50and by the House of
Representatives. 51 This approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

(c) The petition shall state the following:


c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and

A careful scrutiny of the Act yields a negative answer.


First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not suggest an
initiative on amendments to the Constitution. The said section reads:

c.6 an abstract or summary proposition is not more than one hundred (100) words which
shall be legibly written or printed at the top of every page of the petition. (Emphasis
supplied).

106

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or
repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for Local
Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution. This
conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and referendum on
national and local laws. If Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle therefor, considering that
in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the
subtitle on National Initiative and Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the initiative involved, but on its nature and character.
It is "national initiative," if what is proposed to be adopted or enacted is a national law, or a law which only
Congress can pass. It is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or
resolution which only the legislative bodies of the governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of initiative into national and local is actually based
on Section 3 of the Act, which we quote for emphasis and clearer understanding:

(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in an
election called for the purpose shall become effective fifteen (15) days after certification
and proclamation of the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of
local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization, as defined by
law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions for
both national and localinitiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:

Sec. 3. Definition of terms


xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis
supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative on
amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not germane to the
subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:

Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the proper
courts from declaring null and void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local legislative body to enact the
said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in the
implementation of initiative and referendum on national and local legislation thereby giving them special
attention, it failed, rather intentionally, to do so on the system of initiative on amendments to the Constitution.
Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation
in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55

107

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

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim: potestas
delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(b) The submission of the petition to the local legislative body concerned;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the Constitution;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the power of
initiative as a consequence thereof;

(3) Delegation to the people at large;

(d) The formulation of the proposition;

(4) Delegation to local governments; and

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

(5) Delegation to administrative bodies. 60

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

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to promulgate rules
and regulations is a form of delegation of legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is valid. It is valid only if the law (a)
is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by the
delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to
which the delegate must conform in the performance of his functions. 61 A sufficient standard is one which
defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the legislative command is to be effected. 62

(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the registered voters for
their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its twentythree sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative on the
Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; (c) speaks of
"plebiscite" as the process by which the proposition in an initiative on the Constitution may be approved or
rejected by the people; (d) reiterates the constitutional requirements as to the number of voters who should sign
the petition; and (e) provides for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of initiative.
RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments to the Constitution
by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the COMELEC "to promulgate such rules
and regulations as may be necessary to carry out the purposes of [the] Act. 58

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735 miserably failed
to satisfy both requirements in subordinate legislation. The delegation of the power to the COMELEC is then
invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement the
exercise of the right of the people to directly propose amendments to the Constitution through the system of
initiative. It does not have that power under R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where
subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN ENTERTAINING THE DELFIN PETITION.

108

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress to
implement the right to initiate constitutional amendments, or that it has validly vested upon the COMELEC the
power of subordinate legislation and that COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for initiative
on the Constitution must be signed by at least 12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered voters therein. The Delfin Petition does not
contain signatures of the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his drive to gather signatures.
Without the required signatures, the petition cannot be deemed validly initiated.

WHEREFORE, judgment is hereby rendered


a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing rules
and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96-037).

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then is
theinitiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The only
participation of the COMELEC or its personnel before the filing of such petition are (1) to prescribe the form
of the petition; 63(2) to issue through its Election Records and Statistics Office a certificate on the total number
of registered voters in each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election registrars, the signatures on the
basis of the registry list of voters, voters' affidavits, and voters' identification cards used in the immediately
preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution No.
2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent Commission must
have known that the petition does not fall under any of the actions or proceedings under the COMELEC Rules
of Procedure or under Resolution No. 2300, for which reason it did not assign to the petition a docket number.
Hence, the said petition was merely entered as UND, meaning, undocketed. That petition was nothing more
than a mere scrap of paper, which should not have been dignified by the Order of 6 December 1996, the
hearing on 12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of discretion
and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term limits of
elective national and local officials is an amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the Commission
on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.

LAMBINO VS COMELEC
http://www.lawphil.net/judjuris/juri2006/oct2006/gr_174153_2006.html

LAMBINO VS COMELEC RESOLUTION

TOLENTINO VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila

CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no longer be
kept in the cold; it should be given flesh and blood, energy and strength. Congress should not tarry any longer
in complying with the constitutional mandate to provide for the implementation of the right of the people
under that system.

EN BANC

G.R. No. L-34150 October 16, 1971


ARTURO M. TOLENTINO, petitioner,
vs.

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COMMISSION ON ELECTIONS, and THE CHIEF ACCOUNTANT, THE AUDITOR, and THE
DISBURSING OFFICER OF THE 1971 CONSTITUTIONAL CONVENTION, respondents, RAUL S.
MANGLAPUS, JESUS G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA,
MARCELO B. FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA,
and JUAN V. BORRA, Intervenors.

notwithstanding that their corresponding motions for leave to intervene or to appear as amicus curiae 1 have
been denied, the pleadings filed by the other delegates and some private parties, the latter in representation of
their minor children allegedly to be affected by the result of this case with the records and the Court
acknowledges that they have not been without value as materials in the extensive study that has been
undertaken in this case.

Arturo M. Tolentino in his own behalf.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into being by virtue of
two resolutions of the Congress of the Philippines approved in its capacity as a constituent assembly convened
for the purpose of calling a convention to propose amendments to the Constitution namely, Resolutions 2 and 4
of the joint sessions of Congress held on March 16, 1967 and June 17, 1969 respectively. The delegates to the
said Convention were all elected under and by virtue of said resolutions and the implementing legislation
thereof, Republic Act 6132. The pertinent portions of Resolution No 2 read as follows:

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971 Constitutional Convention.
Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing Officer of the 1971
Constitutional Convention.
Intervenors in their own behalf.

SECTION 1. There is hereby called a convention to propose amendments to the


Constitution of the Philippines, to be composed of two elective Delegates from each
representative district who shall have the same qualifications as those required of
Members of the House of Representatives.

BARREDO, J.:

xxx xxx xxx

Petition for prohibition principally to restrain the respondent Commission on Elections "from undertaking to
hold a plebiscite on November 8, 1971," at which the proposed constitutional amendment "reducing the voting
age" in Section 1 of Article V of the Constitution of the Philippines to eighteen years "shall be, submitted" for
ratification by the people pursuant to Organic Resolution No. 1 of the Constitutional Convention of 1971, and
the subsequent implementing resolutions, by declaring said resolutions to be without the force and effect of
law in so far as they direct the holding of such plebiscite and by also declaring the acts of the respondent
Commission (COMELEC) performed and to be done by it in obedience to the aforesaid Convention
resolutions to be null and void, for being violative of the Constitution of the Philippines.

SECTION 7. The amendments proposed by the Convention shall be valid and


considered part of the Constitution when approved by a majority of the votes cast in an
election at which they are submitted to the people for their ratification pursuant to
Article XV of the Constitution.

As a preliminary step, since the petition named as respondent only the COMELEC, the Count required that
copies thereof be served on the Solicitor General and the Constitutional Convention, through its President, for
such action as they may deem proper to take. In due time, respondent COMELEC filed its answer joining
issues with petitioner. To further put things in proper order, and considering that the fiscal officers of the
Convention are indispensable parties in a proceeding of this nature, since the acts sought to be enjoined
involve the expenditure of funds appropriated by law for the Convention, the Court also ordered that the
Disbursing Officer, Chief Accountant and Auditor of the Convention be made respondents. After the petition
was so amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate Ramon
Gonzales. All said respondents, thru counsel, resist petitioner's action.
For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible confusion, and
considering that with the principal parties being duly represented by able counsel, their interests would be
adequately protected already, the Court had to limit the number of intervenors from the ranks of the delegates
to the Convention who, more or less, have legal interest in the success of the respondents, and so, only
Delegates Raul S. Manglapus, Jesus G. Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan,
Jose Y. Feria, Leonardo Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own
right, have been allowed to intervene jointly. The Court feels that with such an array of brilliant and dedicated
counsel, all interests involved should be duly and amply represented and protected. At any rate,

Resolution No. 4 merely modified the number of delegates to represent the different cities and provinces fixed
originally in Resolution No 2.
After the election of the delegates held on November 10, 1970, the Convention held its inaugural session on
June 1, 1971. Its preliminary labors of election of officers, organization of committees and other preparatory
works over, as its first formal proposal to amend the Constitution, its session which began on September 27,
1971, or more accurately, at about 3:30 in the morning of September 28, 1971, the Convention approved
Organic Resolution No. 1 reading thus: .
CC ORGANIC RESOLUTION NO. 1
A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE
CONSTITUTION OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE
TO 18
BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention:
Section 1. Section One of Article V of the Constitution of the Philippines is amended to
as follows:

110

Section 1. Suffrage may be exercised by (male) citizens of the


Philippines not otherwise disqualified by law, who are (twentyone) EIGHTEEN years or over and are able to read and write, and
who shall have resided in the Philippines for one year and in the
municipality wherein they propose to vote for at least six months
preceding the election.
Section 2. This amendment shall be valid as part of the Constitution of the Philippines
when approved by a majority of the votes cast in a plebiscite to coincide with the local
elections in November 1971.
Section 3. This partial amendment, which refers only to the age qualification for the
exercise of suffrage shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the
amended Section or on other portions of the entire Constitution.
Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its
savings or from its unexpended funds for the expense of the advanced plebiscite;
provided, however that should there be no savings or unexpended sums, the Delegates
waive P250.00 each or the equivalent of 2-1/2 days per diem.
By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent Comelec "to
help the Convention implement (the above) resolution." The said letter reads:

DIOSDADO MACAPAGAL ARROYO


On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that it will hold
the plebiscite on condition that:
(a) The Constitutional Convention will undertake the printing of separate official ballots,
election returns and tally sheets for the use of said plebiscite at its expense;
(b) The Constitutional Convention will adopt its own security measures for the printing
and shipment of said ballots and election forms; and
(c) Said official ballots and election forms will be delivered to the Commission in time
so that they could be distributed at the same time that the Commission will distribute its
official and sample ballots to be used in the elections on November 8, 1971.
What happened afterwards may best be stated by quoting from intervenors' Governors' statement of the genesis
of the above proposal:
The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.
This Committee issued implementing guidelines which were approved by the President
who then transmitted them to the Commission on Elections.

September 28, 1971


The Commission on Elections Manila
Thru the Chairman
Gentlemen:
Last night the Constitutional Convention passed Resolution No. 1 quoted as follows:
xxx xxx xxx
(see above)
Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention
implement this resolution:
Sincerely,

The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7,1971, enclosing copies of
the order, resolution and letters of transmittal above referred to (Copy of the report is
hereto attached as Annex 8-Memorandum).
RECESS RESOLUTION
In its plenary session in the evening of October 7, 1971, the Convention approved a
resolution authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess
of the Convention from November 1, 1971 to November 9, 1971 to permit the delegates
to campaign for the ratification of Organic Resolution No. 1. (Copies of the resolution
and the transcript of debate thereon are hereto attached as Annexes 9 and 9-A
Memorandum, respectively).
RESOLUTION CONFIRMING IMPLEMENTATION
On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate
Jose Ozamiz confirming the authority of the President of the Convention to implement
Organic Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all
acts performed in connection with said implementation.

111

Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other implementing
resolutions thereof subsequently approved by the Convention have no force and effect as laws in so far as they
provide for the holding of a plebiscite co-incident with the elections of eight senators and all city, provincial
and municipal officials to be held on November 8, 1971, hence all of Comelec's acts in obedience thereof and
tending to carry out the holding of the plebiscite directed by said resolutions are null and void, on the ground
that the calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in
Congress, as a legislative body, and may not be exercised by the Convention, and that, under Section 1, Article
XV of the Constitution, the proposed amendment in question cannot be presented to the people for ratification
separately from each and all of the other amendments to be drafted and proposed by the Convention. On the
other hand, respondents and intervenors posit that the power to provide for, fix the date and lay down the
details of the plebiscite for the ratification of any amendment the Convention may deem proper to propose is
within the authority of the Convention as a necessary consequence and part of its power to propose
amendments and that this power includes that of submitting such amendments either individually or jointly at
such time and manner as the Convention may direct in discretion. The Court's delicate task now is to decide
which of these two poses is really in accord with the letter and spirit of the Constitution.
As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They contend that the
issue before Us is a political question and that the Convention being legislative body of the highest order is
sovereign, and as such, its acts impugned by petitioner are beyond the control of the Congress and the courts.
In this connection, it is to be noted that none of the respondent has joined intervenors in this posture. In fact,
respondents Chief Accountant and Auditor of the convention expressly concede the jurisdiction of this Court in
their answer acknowledging that the issue herein is a justifiable one.
Strangely, intervenors cite in support of this contention portions of the decision of this Court in the case of
Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their being divided in their
opinions as to the other matters therein involved, were precisely unanimous in upholding its jurisdiction.
Obviously, distinguished counsel have either failed to grasp the full impact of the portions of Our decision they
have quoted or would misapply them by taking them out of context.
There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis the
constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that matter, those of a
constitutional convention called for the purpose of proposing amendments to the Constitution, which
concededly is at par with the former. A simple reading of Our ruling in that very case of Gonzales relied upon
by intervenors should dispel any lingering misgivings as regards that point. Succinctly but comprehensively,
Chief Justice Concepcion held for the Court thus: .
As early as Angara vs. Electoral Commission (63 Phil. 139, 157), this Court speaking
through one of the leading members of the Constitutional Convention and a respected
professor of Constitutional Law, Dr. Jose P. Laurel declared that "the judicial
department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and among the integral or
constituent units thereof."
It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue
submitted thereto as a political one declined to pass upon the question whether or not a
given number of votes cast in Congress in favor of a proposed amendment to the
Constitution which was being submitted to the people for ratification satisfied the

three-fourths vote requirement of the fundamental law. The force of this precedent has
been weakened, however, by Suanes v. Chief Accountant of the Senate (81 Phil.
818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1949), Taada v. Cuenco, (L-10520,
Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684, Sept. 14, 1961). In
the first we held that the officers and employees of the Senate Electoral Tribunal are
under its supervision and control, not of that of the Senate President, as claimed by the
latter; in the second, this Court proceeded to determine the number of Senators
necessary for quorum in the Senate; in the third, we nullified the election, by Senators
belonging to the party having the largest number of votes in said chamber, purporting to
act, on behalf of the party having the second largest number of votes therein of two (2)
Senators belonging to the first party, as members, for the second party, of the Senate
Electoral Tribunal; and in the fourth, we declared unconstitutional an act of Congress
purporting to apportion the representatives districts for the House of Representatives,
upon the ground that the apportionment had not been made as may be possible
according to the number of inhabitants of each province. Thus we rejected the theory,
advanced in these four (4) cases that the issues therein raised were political questions
the determination of which is beyond judicial review.
Indeed, the power to amend the Constitution or to propose amendments thereto is not
included in the general grant of legislative powers to Congress (Section 1, Art. VI,
Constitution of the Philippines). It is part of the inherent powers of the people as the
repository sovereignty in a republican state, such as ours (Section 1, Art. 11,
Constitution of the Philippines) to make, and, hence, to amend their own
Fundamental Law. Congress may propose amendments to the Constitution merely
because the same explicitly grants such power. (Section 1, Art. XV, Constitution of the
Philippines) Hence, when exercising the same, it is said that Senators and members of
the House of Representatives act, not as members of Congress, but as component
elements of aconstituent assembly. When acting as such, the members of Congress
derive their authority from the Constitution, unlike the people, when performing the
same function, (Of amending the Constitution) for their authority does not emanate from
the Constitution they are the very source of all powers of government including the
Constitution itself.
Since, when proposing, as a constituent assembly, amendments to the Constitution, the
members of Congress derive their authority from the Fundamental Law, it follows,
necessarily, that they do not have the final say on whether or not their acts are within or
beyond constitutional limits. Otherwise, they could brush aside and set the same at
naught, contrary to the basic tenet that ours is a government of laws, not of men, and to
the rigid nature of our Constitution. Such rigidity is stressed by the fact that the
Constitution expressly confers upon the Supreme Court, (And, inferentially, to lower
courts.) the power to declare a treaty unconstitutional. (Sec. 2(1), Art. VIII of the
Constitution), despite the eminently political character of treaty-making power.
In short, the issue whether or not a Resolution of Congress acting as a constituent
assembly violates the Constitution is essentially justiciable not political, and, hence,
subject to judicial review, and, to the extent that this view may be inconsistent with the
stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed modified
accordingly. The Members of the Court are unanimous on this point.

112

No one can rightly claim that within the domain of its legitimate authority, the Convention is not supreme.
Nowhere in his petition and in his oral argument and memoranda does petitioner point otherwise. Actually,
what respondents and intervenors are seemingly reluctant to admit is that the Constitutional Convention of
1971, as any other convention of the same nature, owes its existence and derives all its authority and power
from the existing Constitution of the Philippines. This Convention has not been called by the people directly as
in the case of a revolutionary convention which drafts the first Constitution of an entirely new government
born of either a war of liberation from a mother country or of a revolution against an existing government or of
a bloodless seizure of power a la coup d'etat. As to such kind of conventions, it is absolutely true that the
convention is completely without restrain and omnipotent all wise, and it is as to such conventions that the
remarks of Delegate Manuel Roxas of the Constitutional Convention of 1934 quoted by Senator Pelaez refer.
No amount of rationalization can belie the fact that the current convention came into being only because it was
called by a resolution of a joint session of Congress acting as a constituent assembly by authority of Section 1,
Article XV of the present Constitution which provides:
ARTICLE XV AMENDMENTS
SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all
the Members of the Senate and of the House of Representatives voting separately, may
propose amendments to this Constitution or call a convention for the purpose. Such
amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for
their ratification.
True it is that once convened, this Convention became endowed with extra ordinary powers generally beyond
the control of any department of the existing government, but the compass of such powers can be co-extensive
only with the purpose for which the convention was called and as it may propose cannot have any effect as part
of the Constitution until the same are duly ratified by the people, it necessarily follows that the acts of
convention, its officers and members are not immune from attack on constitutional grounds. The present
Constitution is in full force and effect in its entirety and in everyone of its parts the existence of the
Convention notwithstanding, and operates even within the walls of that assembly. While it is indubitable that
in its internal operation and the performance of its task to propose amendments to the Constitution it is not
subject to any degree of restraint or control by any other authority than itself, it is equally beyond cavil that
neither the Convention nor any of its officers or members can rightfully deprive any person of life, liberty or
property without due process of law, deny to anyone in this country the equal protection of the laws or the
freedom of speech and of the press in disregard of the Bill of Rights of the existing Constitution. Nor, for that
matter, can such Convention validly pass any resolution providing for the taking of private property without
just compensation or for the imposition or exacting of any tax, impost or assessment, or declare war or call the
Congress to a special session, suspend the privilege of the writ of habeas corpus, pardon a convict or render
judgment in a controversy between private individuals or between such individuals and the state, in violation
of the distribution of powers in the Constitution.
It being manifest that there are powers which the Convention may not and cannot validly assert, much less
exercise, in the light of the existing Constitution, the simple question arises, should an act of the Convention be
assailed by a citizen as being among those not granted to or inherent in it, according to the existing
Constitution, who can decide whether such a contention is correct or not? It is of the very essence of the rule of
law that somehow somewhere the Power and duty to resolve such a grave constitutional question must be
lodged on some authority, or we would have to confess that the integrated system of government established

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

113

properly is the power of judicial review under the Constitution. Even then, this power of
judicial review is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to strike conclusions unrelated to actualities.
Narrowed as its functions is in this manner the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because the judiciary in the
determination of actual cases and controversies must reflect the wisdom and justice of
the people as expressed through their representatives in the executive and legislative
departments of the government.
But much as we might postulate on the internal checks of power provided in our
Constitution, it ought not the less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of constitutional liberty ... the
people who are authors of this blessing must also be its guardians ... their eyes must be
ever ready to mark, their voices to pronounce ... aggression on the authority of their
Constitution." In the last and ultimate analysis then, must the success of our government
in the unfolding years to come be tested in the crucible of Filipino minds and hearts than
in consultation rooms and court chambers.
In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand, the
Electoral Commission has by resolution adopted on December 9, 1935, fixed said date
as the last day for the filing of protests against the election, returns and qualifications of
members of the National Assembly; notwithstanding the previous confirmations made
by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution
of the National Assembly has the effect of cutting off the power of the Electoral
Commission to entertain protests against the election, returns and qualifications of
members of the National Assembly, submitted after December 3, 1935 then the
resolution of the Electoral Commission of December 9, 1935, is mere surplusage and
had no effect. But, if, as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of the National Assembly,
then the resolution of December 9, 1935, by which the Electoral Commission fixed said
date as the last day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave
constitutional nature between the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the republican government
established in our country in the light of American experience and of our own, upon the
judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission as we
shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely, to determine all contests relating to the election, returns and
qualifications of the members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting within the limits of its

authority, it does not follow that it is beyond the reach of the constitutional mechanism
adopted by the people and that it is not subject to constitutional restriction. The Electoral
Commission is not a separate department of the government, and even if it were,
conflicting claims of authority under the fundamental law between departmental powers
and agencies of the government are necessarily determined by the judiciary in
justiciable and appropriate cases. Discarding the English type and other European types
of constitutional government, the framers of our Constitution adopted the American type
where the written constitution is interpreted and given effect by the judicial department.
In some countries which have declined to follow the American example, provisions have
been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be
the rule that in the absence of direct prohibition, courts are bound to assume what is
logically their function. For instance, the Constitution of Poland of 1921 expressly
provides that courts shall have no power to examine the validity of statutes (art. 81,
Chap. IV). The former Austrian Constitution contained a similar declaration. In
countries whose constitution are silent in this respect, courts have assumed this power.
This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslavak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of
1931) especial constitutional courts are established to pass upon the validity of ordinary
laws. In our case, the nature of the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between two agencies created
by the Constitution. Were we to decline to take cognizance of the controversy, who will
determine the conflict? And if the conflict were left undecided and undetermined, would
not a void be thus created in our constitutional system which may in the long run prove
destructive of the entire framework? To ask these questions is to answer them. Natura
vacuum abhorret, so must we avoid exhaustion in our constitutional system. Upon
principle, reason, and authority, we are clearly of the opinion that upon the admitted
facts of the present case, this court has jurisdiction over the Electoral Commission and
the subject matter of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as
"the sole judge of all contests relating to the election, returns and qualifications of the
members of the National Assembly." .
As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these postulates just
quoted do not apply only to conflicts of authority between the three existing regular departments of the
government but to all such conflicts between and among these departments, or, between any of them, on the
one hand, and any other constitutionally created independent body, like the electoral tribunals in Congress, the
Comelec and the Constituent assemblies constituted by the House of Congress, on the other. We see no reason
of logic or principle whatsoever, and none has been convincingly shown to Us by any of the respondents and
intervenors, why the same ruling should not apply to the present Convention, even if it is an assembly of
delegate elected directly by the people, since at best, as already demonstrated, it has been convened by
authority of and under the terms of the present Constitution..
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the present case. It
goes without saying that We do this not because the Court is superior to the Convention or that the Convention
is subject to the control of the Court, but simply because both the Convention and the Court are subject to the
Constitution and the rule of law, and "upon principle, reason and authority," per Justice Laurel, supra, it is

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within the power as it is the solemn duty of the Court, under the existing Constitution to resolve the issues in
which petitioner, respondents and intervenors have joined in this case.
II
The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the powers of the
Constitutional Convention of 1971 to order, on its own fiat, the holding of a plebiscite for the ratification of the
proposed amendment reducing to eighteen years the age for the exercise of suffrage under Section 1 of Article
V of the Constitution proposed in the Convention's Organic Resolution No. 1 in the manner and form provided
for in said resolution and the subsequent implementing acts and resolution of the Convention?
At the threshold, the environmental circumstances of this case demand the most accurate and unequivocal
statement of the real issue which the Court is called upon to resolve. Petitioner has very clearly stated that he is
not against the constitutional extension of the right of suffrage to the eighteen-year-olds, as a matter of fact, he
has advocated or sponsored in Congress such a proposal, and that, in truth, the herein petition is not intended
by him to prevent that the proposed amendment here involved be submitted to the people for ratification, his
only purpose in filing the petition being to comply with his sworn duty to prevent, Whenever he can, any
violation of the Constitution of the Philippines even if it is committed in the course of or in connection with
the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this case is limited
solely and only to the point of whether or not it is within the power of the Convention to call for a plebiscite
for the ratification by the people of the constitutional amendment proposed in the abovequoted Organic
Resolution No. 1, in the manner and form provided in said resolution as well as in the subject question
implementing actions and resolution of the Convention and its officers, at this juncture of its proceedings,
when as it is a matter of common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact,
still in the preliminary stages of considering other reforms or amendments affecting other parts of the existing
Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides, that the amendment therein
proposed "shall be without prejudice to other amendments that will be proposed in the future by the 1971
Constitutional Convention on other portions of the amended section or on other portions of the entire
Constitution." In other words, nothing that the Court may say or do, in this case should be understood as
reflecting, in any degree or means the individual or collective stand of the members of the Court on the
fundamental issue of whether or not the eighteen-year-olds should be allowed to vote, simply because that
issue is not before Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed amendment may be
presented to the people for their approval or rejection.
Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have not blinded
them to the absolute necessity, under the fundamental principles of democracy to which the Filipino people is
committed, of adhering always to the rule of law. Surely, their idealism, sincerity and purity of purpose cannot
permit any other line of conduct or approach in respect of the problem before Us. The Constitutional
Convention of 1971 itself was born, in a great measure, because of the pressure brought to bear upon the
Congress of the Philippines by various elements of the people, the youth in particular, in their incessant search
for a peaceful and orderly means of bringing about meaningful changes in the structure and bases of the
existing social and governmental institutions, including the provisions of the fundamental law related to the
well-being and economic security of the underprivileged classes of our people as well as those concerning the
preservation and protection of our natural resources and the national patrimony, as an alternative to violent and
chaotic ways of achieving such lofty ideals. In brief, leaving aside the excesses of enthusiasm which at times
have justifiably or unjustifiably marred the demonstrations in the streets, plazas and campuses, the youth of the

Philippines, in general, like the rest of the people, do not want confusion and disorder, anarchy and violence;
what they really want are law and order, peace and orderliness, even in the pursuit of what they strongly and
urgently feel must be done to change the present order of things in this Republic of ours. It would be tragic and
contrary to the plain compulsion of these perspectives, if the Court were to allow itself in deciding this case to
be carried astray by considerations other than the imperatives of the rule of law and of the applicable
provisions of the Constitution. Needless to say, in a larger measure than when it binds other departments of the
government or any other official or entity, the Constitution imposes upon the Court the sacred duty to give
meaning and vigor to the Constitution, by interpreting and construing its provisions in appropriate cases with
the proper parties, and by striking down any act violative thereof. Here, as in all other cases, We are resolved
to discharge that duty.
During these twice when most anyone feels very strongly the urgent need for constitutional reforms, to the
point of being convinced that meaningful change is the only alternative to a violent revolution, this Court
would be the last to put any obstruction or impediment to the work of the Constitutional Convention. If there
are respectable sectors opining that it has not been called to supplant the existing Constitution in its entirety,
since its enabling provision, Article XV, from which the Convention itself draws life expressly speaks only of
amendments which shall form part of it, which opinion is not without persuasive force both in principle and in
logic, the seemingly prevailing view is that only the collective judgment of its members as to what is
warranted by the present condition of things, as they see it, can limit the extent of the constitutional
innovations the Convention may propose, hence the complete substitution of the existing constitution is not
beyond the ambit of the Convention's authority. Desirable as it may be to resolve, this grave divergence of
views, the Court does not consider this case to be properly the one in which it should discharge its
constitutional duty in such premises. The issues raised by petitioner, even those among them in which
respondents and intervenors have joined in an apparent wish to have them squarely passed upon by the Court
do not necessarily impose upon Us the imperative obligation to express Our views thereon. The Court
considers it to be of the utmost importance that the Convention should be untrammelled and unrestrained in the
performance of its constitutionally as signed mission in the manner and form it may conceive best, and so the
Court may step in to clear up doubts as to the boundaries set down by the Constitution only when and to the
specific extent only that it would be necessary to do so to avoid a constitutional crisis or a clearly demonstrable
violation of the existing Charter. Withal, it is a very familiar principle of constitutional law that constitutional
questions are to be resolved by the Supreme Court only when there is no alternative but to do it, and this rule is
founded precisely on the principle of respect that the Court must accord to the acts of the other coordinate
departments of the government, and certainly, the Constitutional Convention stands almost in a unique footing
in that regard.
In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into
being by a call of a joint session of Congress pursuant to Section I of Article XV of the Constitution, already
quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the
performance of its assigned mission to propose amendments to the Constitution, the Convention and its
officers and members are all subject to all the provisions of the existing Constitution. Now We hold that even
as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section I of
Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the
process of amending the same should not be undertaken with the same ease and facility in changing an
ordinary legislation. Constitution making is the most valued power, second to none, of the people in a
constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the
succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and
every other conceivable aspect of the lives of all the people within the country and those subject to its
sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for

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which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance than the whole Constitution
itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature
of things, the drafters of an original constitution, as already observed earlier, operate without any limitations,
restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of
subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it
that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely
personal but more importantly, because written constitutions are supposed to be designed so as to last for some
time, if not for ages, or for, at least, as long as they can be adopted to the needs and exigencies of the people,
hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political
moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or
less stringent, made so by the people themselves, in regard to the process of their amendment. And when such
limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they are as
powerful and omnipotent as their original counterparts.
Nothing of what is here said is to be understood as curtailing in any degree the number and nature and the
scope and extent of the amendments the Convention may deem proper to propose. Nor does the Court propose
to pass on the issue extensively and brilliantly discussed by the parties as to whether or not the power or duty
to call a plebiscite for the ratification of the amendments to be proposed by the Convention is exclusively
legislative and as such may be exercised only by the Congress or whether the said power can be exercised
concurrently by the Convention with the Congress. In the view the Court takes of present case, it does not
perceive absolute necessity to resolve that question, grave and important as it may be. Truth to tell, the lack of
unanimity or even of a consensus among the members of the Court in respect to this issue creates the need for
more study and deliberation, and as time is of the essence in this case, for obvious reasons, November 8, 1971,
the date set by the Convention for the plebiscite it is calling, being nigh, We will refrain from making any
pronouncement or expressing Our views on this question until a more appropriate case comes to Us. After all,
the basis of this decision is as important and decisive as any can be.
The ultimate question, therefore boils down to this: Is there any limitation or condition in Section 1 of Article
XV of the Constitution which is violated by the act of the Convention of calling for a plebiscite on the sole
amendment contained in Organic Resolution No. 1? The Court holds that there is, and it is the condition and
limitation that all the amendments to be proposed by the same Convention must be submitted to the people in a
single "election" or plebiscite. It being indisputable that the amendment now proposed to be submitted to a
plebiscite is only the first amendment the Convention propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the people on November 8, 1971 is not authorized by Section
1 of Article XV of the Constitution, hence all acts of the Convention and the respondent Comelec in that
direction are null and void.
We have arrived at this conclusion for the following reasons:
1. The language of the constitutional provision aforequoted is sufficiently clear. lt says distinctly that either
Congress sitting as a constituent assembly or a convention called for the purpose "may propose amendments to
this Constitution," thus placing no limit as to the number of amendments that Congress or the Convention may
propose. The same provision also as definitely provides that "such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the amendments are
submitted to the people for their ratification," thus leaving no room for doubt as to how many "elections" or

plebiscites may be held to ratify any amendment or amendments proposed by the same constituent assembly of
Congress or convention, and the provision unequivocably says "an election" which means only one.
(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this provision. As
already stated, amending the Constitution is as serious and important an undertaking as constitution making
itself. Indeed, any amendment of the Constitution is as important as the whole of it if only because the
Constitution has to be an integrated and harmonious instrument, if it is to be viable as the framework of the
government it establishes, on the one hand, and adequately formidable and reliable as the succinct but
comprehensive articulation of the rights, liberties, ideology, social ideals, and national and nationalistic
policies and aspirations of the people, on the other. lt is inconceivable how a constitution worthy of any
country or people can have any part which is out of tune with its other parts..
A constitution is the work of the people thru its drafters assembled by them for the purpose. Once the original
constitution is approved, the part that the people play in its amendment becomes harder, for when a whole
constitution is submitted to them, more or less they can assumed its harmony as an integrated whole, and they
can either accept or reject it in its entirety. At the very least, they can examine it before casting their vote and
determine for themselves from a study of the whole document the merits and demerits of all or any of its parts
and of the document as a whole. And so also, when an amendment is submitted to them that is to form part of
the existing constitution, in like fashion they can study with deliberation the proposed amendment in relation
to the whole existing constitution and or any of its parts and thereby arrive at an intelligent judgment as to its
acceptability.
This cannot happen in the case of the amendment in question. Prescinding already from the fact that under
Section 3 of the questioned resolution, it is evident that no fixed frame of reference is provided the voter, as to
what finally will be concomitant qualifications that will be required by the final draft of the constitution to be
formulated by the Convention of a voter to be able to enjoy the right of suffrage, there are other considerations
which make it impossible to vote intelligently on the proposed amendment, although it may already be
observed that under Section 3, if a voter would favor the reduction of the voting age to eighteen under
conditions he feels are needed under the circumstances, and he does not see those conditions in the ballot nor
is there any possible indication whether they will ever be or not, because Congress has reserved those for
future action, what kind of judgment can he render on the proposal?
But the situation actually before Us is even worse. No one knows what changes in the fundamental principles
of the constitution the Convention will be minded to approve. To be more specific, we do not have any means
of foreseeing whether the right to vote would be of any significant value at all. Who can say whether or not
later on the Convention may decide to provide for varying types of voters for each level of the political units it
may divide the country into. The root of the difficulty in other words, lies in that the Convention is precisely
on the verge of introducing substantial changes, if not radical ones, in almost every part and aspect of the
existing social and political order enshrined in the present Constitution. How can a voter in the proposed
plebiscite intelligently determine the effect of the reduction of the voting age upon the different institutions
which the Convention may establish and of which presently he is not given any idea?
We are certain no one can deny that in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time but ample basis for an
intelligent appraisal of the nature of the amendment per se as well as its relation to the other parts of the
Constitution with which it has to form a harmonious whole. In the context of the present state of things, where
the Convention has hardly started considering the merits of hundreds, if not thousands, of proposals to amend

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the existing Constitution, to present to the people any single proposal or a few of them cannot comply with this
requirement. We are of the opinion that the present Constitution does not contemplate in Section 1 of Article
XV a plebiscite or "election" wherein the people are in the dark as to frame of reference they can base their
judgment on. We reject the rationalization that the present Constitution is a possible frame of reference, for the
simple reason that intervenors themselves are stating that the sole purpose of the proposed amendment is to
enable the eighteen year olds to take part in the election for the ratification of the Constitution to be drafted by
the Convention. In brief, under the proposed plebiscite, there can be, in the language of Justice Sanchez,
speaking for the six members of the Court in Gonzales, supra, "no proper submission".

JOSE A. ANGARA, petitioner,


vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C.
MAYOR,respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.

III
LAUREL, J.:
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional Convention. Much
less does the Court want to pass judgment on the merits of the proposal to allow these eighteen years old to
vote. But like the Convention, the Court has its own duties to the people under the Constitution which is to
decide in appropriate cases with appropriate parties Whether or not the mandates of the fundamental law are
being complied with. In the best light God has given Us, we are of the conviction that in providing for the
questioned plebiscite before it has finished, and separately from, the whole draft of the constitution it has been
called to formulate, the Convention's Organic Resolution No. 1 and all subsequent acts of the Convention
implementing the same violate the condition in Section 1, Article XV that there should only be one "election"
or plebiscite for the ratification of all the amendments the Convention may propose. We are not denying any
right of the people to vote on the proposed amendment; We are only holding that under Section 1, Article XV
of the Constitution, the same should be submitted to them not separately from but together with all the other
amendments to be proposed by this present Convention.
IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1 of the
Constitutional Convention of 1971 and the implementing acts and resolutions of the Convention, insofar as
they provide for the holding of a plebiscite on November 8, 1971, as well as the resolution of the respondent
Comelec complying therewith (RR Resolution No. 695) are hereby declared null and void. The respondents
Comelec, Disbursing Officer, Chief Accountant and Auditor of the Constitutional Convention are hereby
enjoined from taking any action in compliance with the said organic resolution. In view of the peculiar
circumstances of this case, the Court declares this decision immediately executory. No costs.

JUDICIAL REVIEW

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from taking further
cognizance of the protest filed by Pedro Ynsua, another respondent, against the election of said petitioner as
member of the National Assembly for the first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents,
Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of
member of the National Assembly for the first district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the said district, for having received the most number of
votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled, passed the following
resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.

ANGARA VS ELECTORAL COMMISSION


Republic of the Philippines
SUPREME COURT
Manila

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere
presentado debidamente una protesta antes de la adopcion de la presente resolucion
sean, como por la presente, son aprobadas y confirmadas.

EN BANC
Adoptada, 3 de diciembre, 1935.
G.R. No. L-45081

July 15, 1936


(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara,

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being the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among
other-things, that said respondent be declared elected member of the National Assembly for the first
district of Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of
which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de
este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the
aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging
(a) that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National
Assembly was adopted in the legitimate exercise of its constitutional prerogative to prescribe the
period during which protests against the election of its members should be presented; (b) that the
aforesaid resolution has for its object, and is the accepted formula for, the limitation of said period;
and (c) that the protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the
Motion of Dismissal" alleging that there is no legal or constitutional provision barring the
presentation of a protest against the election of a member of the National Assembly after
confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution
on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as
regards the merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of
said election contests, which power has been reserved to the Legislative Department of the
Government or the National Assembly;
(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for
decision and to matters involving their internal organization, the Electoral Commission can regulate
its proceedings only if the National Assembly has not availed of its primary power to so regulate
such proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and
obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United
States) as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the
Constitution, this Supreme Court has jurisdiction to pass upon the fundamental question herein
raised because it involves an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:
(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the
Legislative Department invested with the jurisdiction to decide "all contests relating to the election,
returns, and qualifications of the members of the National Assembly"; that in adopting its resolution
of December 9, 1935, fixing this date as the last day for the presentation of protests against the
election of any member of the National Assembly, it acted within its jurisdiction and in the
legitimate exercise of the implied powers granted it by the Constitution to adopt the rules and
regulations essential to carry out the power and functions conferred upon the same by the
fundamental law; that in adopting its resolution of January 23, 1936, overruling the motion of the
petitioner to dismiss the election protest in question, and declaring itself with jurisdiction to take
cognizance of said protest, it acted in the legitimate exercise of its quasi-judicial functions a an
instrumentality of the Legislative Department of the Commonwealth Government, and hence said
act is beyond the judicial cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of
the members of the National Assembly against whom no protest had thus far been filed, could not
and did not deprive the electoral Commission of its jurisdiction to take cognizance of election
protests filed within the time that might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2, 1936,
setting forth the following as his special defense:
(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935,
there was no existing law fixing the period within which protests against the election of members of
the National Assembly should be filed; that in fixing December 9, 1935, as the last day for the
filing of protests against the election of members of the National Assembly, the Electoral
Commission was exercising a power impliedly conferred upon it by the Constitution, by reason of
its quasi-judicial attributes;

118

(b) That said respondent presented his motion of protest before the Electoral Commission on
December 9, 1935, the last day fixed by paragraph 6 of the rules of the said Electoral Commission;

the question and leave it undecided. Neither would we be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of jurisdiction squarely presented to our consideration.

(c) That therefore the Electoral Commission acquired jurisdiction over the protest filed by said
respondent and over the parties thereto, and the resolution of the Electoral Commission of January
23, 1936, denying petitioner's motion to dismiss said protest was an act within the jurisdiction of
the said commission, and is not reviewable by means of a writ of prohibition;

The separation of powers is a fundamental principle in our system of government. It obtains not through
express provision but by actual division in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from
the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system
of checks and balances to secure coordination in the workings of the various departments of the government.
For example, the Chief Executive under our Constitution is so far made a check on the legislative power that
this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may
become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or threefourths, as the case may be, of the National Assembly. The President has also the right to convene the
Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a
check on the Executive in the sense that its consent through its Commission on Appointments is necessary in
the appointments of certain officers; and the concurrence of a majority of all its members is essential to the
conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall
be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly
controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying
impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the
election of its members, and that such confirmation does not operate to limit the period within
which protests should be filed as to deprive the Electoral Commission of jurisdiction over protest
filed subsequent thereto;
(e) That the Electoral Commission is an independent entity created by the Constitution, endowed
with quasi-judicial functions, whose decision are final and unappealable;
( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal,
corporation, board or person, within the terms of sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions of sections 1 and 2 of article II (should be article
VIII) of the Constitution and paragraph 13 of section 1 of the Ordinance appended thereto could it
be subject in the exercise of its quasi-judicial functions to a writ of prohibition from the Supreme
Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of
the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner prayed
for the issuance of a preliminary writ of injunction against the respondent Electoral Commission which
petition was denied "without passing upon the merits of the case" by resolution of this court of March 21,
1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the subject matter of the
controversy upon the foregoing related facts, and in the affirmative,
2. Has the said Electoral Commission acted without or in excess of its jurisdiction in assuming to
the cognizance of the protest filed the election of the herein petitioner notwithstanding the previous
confirmation of such election by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not feel justified in evading the issue. Being a
case prim impressionis, it would hardly be consistent with our sense of duty to overlook the broader aspect of

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government. The overlapping and interlacing of
functions and duties between the several departments, however, sometimes makes it hard to say just where the
one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon to determine the proper allocation of
powers between the several departments and among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking perfection and perfectibility, but as much as it
was within the power of our people, acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican government intended to operate
and function as a harmonious whole, under a system of checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the distribution of powers would be mere
verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political
apothegms. Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in
any living constitution. In the United States where no express constitutional grant is found in their constitution,
the possession of this moderating power of the courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a period of more than one and a half centuries. In our
case, this moderating power is granted, if not expressly, by clear implication from section 2 of article VIII of
our constitution.

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The Constitution is a definition of the powers of government. Who is to determine the nature, scope and extent
of such powers? The Constitution itself has provided for the instrumentality of the judiciary as the rational
way. And when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority
over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts
the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the Constitution. Even then, this power of judicial review
is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or the very lis mota presented. Any attempt at
abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities. Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom,
justice or expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the wisdom and
justice of the people as expressed through their representatives in the executive and legislative departments of
the governments of the government.
But much as we might postulate on the internal checks of power provided in our Constitution, it ought not the
less to be remembered that, in the language of James Madison, the system itself is not "the chief palladium of
constitutional liberty . . . the people who are authors of this blessing must also be its guardians . . . their eyes
must be ever ready to mark, their voice to pronounce . . . aggression on the authority of their constitution." In
the Last and ultimate analysis, then, must the success of our government in the unfolding years to come be
tested in the crucible of Filipino minds and hearts than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the election
of the herein petitioner to the said body. On the other hand, the Electoral Commission has by resolution
adopted on December 9, 1935, fixed said date as the last day for the filing of protests against the election,
returns and qualifications of members of the National Assembly, notwithstanding the previous confirmation
made by the National Assembly as aforesaid. If, as contended by the petitioner, the resolution of the National
Assembly has the effect of cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted after December 3, 1935,
then the resolution of the Electoral Commission of December 9, 1935, is mere surplusage and had no effect.
But, if, as contended by the respondents, the Electoral Commission has the sole power of regulating its
proceedings to the exclusion of the National Assembly, then the resolution of December 9, 1935, by which the
Electoral Commission fixed said date as the last day for filing protests against the election, returns and
qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of a grave constitutional nature
between the National Assembly on the one hand, and the Electoral Commission on the other. From the very
nature of the republican government established in our country in the light of American experience and of our
own, upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The Electoral Commission, as we shall have occasion to
refer hereafter, is a constitutional organ, created for a specific purpose, namely to determine all contests
relating to the election, returns and qualifications of the members of the National Assembly. Although the
Electoral Commission may not be interfered with, when and while acting within the limits of its authority, it
does not follow that it is beyond the reach of the constitutional mechanism adopted by the people and that it is
not subject to constitutional restrictions. The Electoral Commission is not a separate department of the

government, and even if it were, conflicting claims of authority under the fundamental law between
department powers and agencies of the government are necessarily determined by the judiciary in justifiable
and appropriate cases. Discarding the English type and other European types of constitutional government, the
framers of our constitution adopted the American type where the written constitution is interpreted and given
effect by the judicial department. In some countries which have declined to follow the American example,
provisions have been inserted in their constitutions prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a recognition of what otherwise would be the rule that in the
absence of direct prohibition courts are bound to assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that courts shall have no power to examine the validity of
statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar declaration. In countries
whose constitutions are silent in this respect, courts have assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to constitutional
Charter of the Czechoslovak Republic, February 29, 1920) and Spain (arts. 121-123, Title IX, Constitutional of
the Republic of 1931) especial constitutional courts are established to pass upon the validity of ordinary laws.
In our case, the nature of the present controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by the Constitution. Were we to decline to
take cognizance of the controversy, who will determine the conflict? And if the conflict were left undecided
and undetermined, would not a void be thus created in our constitutional system which may be in the long run
prove destructive of the entire framework? To ask these questions is to answer them. Natura vacuum abhorret,
so must we avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly
of the opinion that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for the purpose of determining the character,
scope and extent of the constitutional grant to the Electoral Commission as "the sole judge of all contests
relating to the election, returns and qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take cognizance of the protest filed against the election of
the herein petitioner notwithstanding the previous confirmation thereof by the National Assembly on
December 3, 1935. As able counsel for the petitioner has pointed out, the issue hinges on the interpretation of
section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice 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 all contests relating to the election, returns and qualifications of the members of the National
Assembly." It is imperative, therefore, that we delve into the origin and history of this constitutional provision
and inquire into the intention of its framers and the people who adopted it so that we may properly appreciate
its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying down
the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its members", was
taken from clause 1 of section 5, Article I of the Constitution of the United States providing that "Each House
shall be the Judge of the Elections, Returns, and Qualifications of its own Members, . . . ." The Act of
Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the insertion of the word "sole" as
follows: "That the Senate and House of Representatives, respectively, shall be the sole judges of the elections,
returns, and qualifications of their elective members . . ." apparently in order to emphasize the exclusive the

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Legislative over the particular case s therein specified. This court has had occasion to characterize this grant of
power to the Philippine Senate and House of Representatives, respectively, as "full, clear and complete"
(Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose of deciding contested elections to
the legislature was taken by the sub-committee of five appointed by the Committee on Constitutional
Guarantees of the Constitutional Convention, which sub-committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security empowered to hear legislature but also
against the election of executive officers for whose election the vote of the whole nation is required, as well as
to initiate impeachment proceedings against specified executive and judicial officer. For the purpose of hearing
legislative protests, the tribunal was to be composed of three justices designated by the Supreme Court and six
members of the house of the legislature to which the contest corresponds, three members to be designed by the
majority party and three by the minority, to be presided over by the Senior Justice unless the Chief Justice is
also a member in which case the latter shall preside. The foregoing proposal was submitted by the Committee
on Constitutional Guarantees to the Convention on September 15, 1934, with slight modifications consisting in
the reduction of the legislative representation to four members, that is, two senators to be designated one each
from the two major parties in the Senate and two representatives to be designated one each from the two major
parties in the House of Representatives, and in awarding representation to the executive department in the
persons of two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the Convention
on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative Department, reads as
follows:
The elections, returns and qualifications of the members of either house and all cases contesting the
election of any of their members shall be judged by an Electoral Commission, constituted, as to
each House, by three members elected by the members of the party having the largest number of
votes therein, three elected by the members of the party having the second largest number of votes,
and as to its Chairman, one Justice of the Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art. 121,
Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of the
Committee on Legislative Power to create a similar body with reduced powers and with specific and limited
jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified the proposal of
the Committee on Legislative Power with respect to the composition of the Electoral Commission and made
further changes in phraseology to suit the project of adopting a unicameral instead of a bicameral legislature.
The draft as finally submitted to the Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members 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 Justice, the Commission to be
presided over by one of said justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others, proposing to
strike out the whole subsection of the foregoing draft and inserting in lieu thereof the following: "The National
Assembly shall be the soled and exclusive judge of the elections, returns, and qualifications of the Members",
the following illuminating remarks were made on the floor of the Convention in its session of December 4,
1934, as to the scope of the said draft:
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Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four
lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the
Members of the National Assembly and all cases contesting the election of any of its Members shall
be judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz
whether the election and qualification of the member whose elections is not contested shall also be
judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of the members, there is nothing to be
judged; that is why the word "judge" is used to indicate a controversy. If there is no question about
the election of a member, there is nothing to be submitted to the Electoral Commission and there is
nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also
the election of those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of
Representatives confirming the election of its members is just a matter of the rules of the assembly.
It is not constitutional. It is not necessary. After a man files his credentials that he has been elected,
that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes
of the auditor, in the matter of election of a member to a legislative body, because he will not
authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What
happens with regards to the councilors of a municipality? Does anybody confirm their election?
The municipal council does this: it makes a canvass and proclaims in this case the municipal
council proclaims who has been elected, and it ends there, unless there is a contest. It is the same
case; there is no need on the part of the Electoral Commission unless there is a contest. The first
clause refers to the case referred to by the gentleman from Cavite where one person tries to be
elected in place of another who was declared elected. From example, in a case when the residence
of the man who has been elected is in question, or in case the citizenship of the man who has been
elected is in question.
However, if the assembly desires to annul the power of the commission, it may do so by certain
maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to
give to the Electoral Commission all the powers exercised by the assembly referring to the

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elections, returns and qualifications of the members. When there is no contest, there is nothing to
be judged.

Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the
eligibility of its members?

Mr. VENTURA. Then it should be eliminated.

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission
and make the question before the Electoral Commission.

Mr. ROXAS. But that is a different matter, I think Mr. Delegate.


Mr. CINCO. Mr. President, I have a similar question as that propounded by the gentleman from
Ilocos Norte when I arose a while ago. However I want to ask more questions from the delegate
from Capiz. This paragraph 6 on page 11 of the draft cites cases contesting the election as separate
from the first part of the sections which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are
already included in the phrase "the elections, returns and qualifications." This phrase "and
contested elections" was inserted merely for the sake of clarity.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested
or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power
and authority to pass upon the qualifications of the members of the National Assembly even though
that question has not been raised.
Mr. ROXAS. I have just said that they have no power, because they can only judge.

Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to
confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?

In the same session, the first clause of the aforesaid draft reading "The election, returns and qualifications of
the members of the National Assembly and" was eliminated by the Sponsorship Committee in response to an
amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:
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THE PRESIDENT. The gentleman may yield, if he so desires.


Mr. ROXAS. Willingly.
Mr. 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?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if
two-thirds of the assembly believe that a member has not the qualifications provided by law, they
cannot remove him for that reason.

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Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion apuntada por
varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and
qualifications of the members of the National Assembly" parece que da a la Comision Electoral la
facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para
obviar esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft,
de tal modo que se lea como sigue: "All cases contesting the election", de modo que los jueces de la
Comision Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas."
Before the amendment of Delegate Labrador was voted upon the following interpellation also took
place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.
El Sr. PRESIDENTE. Que dice el Comite?
Mr. ROXAS. By the assembly for misconduct.
El Sr. ROXAS. Con mucho gusto.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.

El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la
minoria y tres a la Corte Suprema, no cree Su Seoria que esto equivale practicamente a dejar el
asunto a los miembros del Tribunal Supremo?

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El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma,
tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte
Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.
El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la
mayoria como los de la minoria prescindieran del partidismo?

The transfer of the power of determining the election, returns and qualifications of the members of the
legislature long lodged in the legislative body, to an independent, impartial and non-partisan tribunal, is by no
means a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58), gives a
vivid account of the "scandalously notorious" canvassing of votes by political parties in the disposition of
contests by the House of Commons in the following passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:

El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
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The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power to decide
contests relating to the election, returns and qualifications of members of the National Assembly to the
National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme Court in the Electoral Commission to two members each,
so as to accord more representation to the majority party. The Convention rejected this amendment by a vote of
seventy-six (76) against forty-six (46), thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) 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 Justice, the Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. 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.
When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee, through
President Recto, to effectuate the original intention of the Convention, agreed to insert the phrase "All contests
relating to" between the phrase "judge of" and the words "the elections", which was accordingly accepted by
the Convention.

153. From the time when the commons established their right to be the exclusive judges of the
elections, returns, and qualifications of their members, until the year 1770, two modes of
proceeding prevailed, in the determination of controverted elections, and rights of membership.
One of the standing committees appointed at the commencement of each session, was denominated
the committee of privileges and elections, whose functions was to hear and investigate all questions
of this description which might be referred to them, and to report their proceedings, with their
opinion thereupon, to the house, from time to time. When an election petition was referred to this
committee they heard the parties and their witnesses and other evidence, and made a report of all
the evidence, together with their opinion thereupon, in the form of resolutions, which were
considered and agreed or disagreed to by the house. The other mode of proceeding was by a hearing
at the bar of the house itself. When this court was adopted, the case was heard and decided by the
house, in substantially the same manner as by a committee. The committee of privileges and
elections although a select committee. The committee of privileges and elections although a select
committee was usually what is called an open one; that is to say, in order to constitute the
committee, a quorum of the members named was required to be present, but all the members of the
house were at liberty to attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the right of membership
gradually assumed a political character; so that for many years previous to the year 1770,
controverted elections had been tried and determined by the house of commons, as mere party
questions, upon which the strength of contending factions might be tested. Thus, for Example, in
1741, Sir Robert Walpole, after repeated attacks upon his government, resigned his office in
consequence of an adverse vote upon the Chippenham election. Mr. Hatsell remarks, of the trial of
election cases, as conducted under this system, that "Every principle of decency and justice were
notoriously and openly prostituted, from whence the younger part of the house were insensibly, but
too successfully, induced to adopt the same licentious conduct in more serious matters, and in
questions of higher importance to the public welfare." Mr. George Grenville, a distinguished
member of the house of commons, undertook to propose a remedy for the evil, and, on the 7th of
March, 1770, obtained the unanimous leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in parliament." In his speech to explain his
plan, on the motion for leave, Mr. Grenville alluded to the existing practice in the following terms:
"Instead of trusting to the merits of their respective causes, the principal dependence of both parties
is their private interest among us; and it is scandalously notorious that we are as earnestly
canvassed to attend in favor of the opposite sides, as if we were wholly self-elective, and not bound
to act by the principles of justice, but by the discretionary impulse of our own inclinations; nay, it is
well known, that in every contested election, many members of this house, who are ultimately to
judge in a kind of judicial capacity between the competitors, enlist themselves as parties in the
contention, and take upon themselves the partial management of the very business, upon which
they should determine with the strictest impartiality."

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155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which
met with the approbation of both houses, and received the royal assent on the 12th of April, 1770.
This was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell
declares, that it "was one of the nobles works, for the honor of the house of commons, and the
security of the constitution, that was ever devised by any minister or statesman." It is probable, that
the magnitude of the evil, or the apparent success of the remedy, may have led many of the
contemporaries of the measure to the information of a judgement, which was not acquiesced in by
some of the leading statesmen of the day, and has not been entirely confirmed by subsequent
experience. The bill was objected to by Lord North, Mr. De Grey, afterwards chief justice of the
common pleas, Mr. Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles James Fox,
chiefly on the ground, that the introduction of the new system was an essential alteration of the
constitution of parliament, and a total abrogation of one of the most important rights and
jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan
settlement of the controverted elections of its members by abdicating its prerogative to two judges of the
King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made for the
purpose. Having proved successful, the practice has become imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and Corrupt Practices Act.
1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s.
70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol. XXI,
p. 787). In the Dominion of Canada, election contests which were originally heard by the Committee of the
House of Commons, are since 1922 tried in the courts. Likewise, in the Commonwealth of Australia, election
contests which were originally determined by each house, are since 1922 tried in the High Court. In Hungary,
the organic law provides that all protests against the election of members of the Upper House of the Diet are to
be resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution
of Poland of March 17, 1921 (art. 19) and the Constitution of the Free City of Danzig of May 13, 1922 (art.
10) vest the authority to decide contested elections to the Diet or National Assembly in the Supreme Court. For
the purpose of deciding legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian
Republic of June 2, 1927 (art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited both from the legislature and the
judiciary is by no means unknown in the United States. In the presidential elections of 1876 there was a
dispute as to the number of electoral votes received by each of the two opposing candidates. As the
Constitution made no adequate provision for such a contingency, Congress passed a law on January 29, 1877
(United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral Commission
composed of five members elected by the Senate, five members elected by the House of Representatives, and
five justices of the Supreme Court, the fifth justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by the two houses voting separately. Although
there is not much of a moral lesson to be derived from the experience of America in this regard, judging from
the observations of Justice Field, who was a member of that body on the part of the Supreme Court
(Countryman, the Supreme Court of the United States and its Appellate Power under the Constitution [Albany,
1913] Relentless Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at least abiding
historical interest.
The members of the Constitutional Convention who framed our fundamental law were in their majority men
mature in years and experience. To be sure, many of them were familiar with the history and political

development of other countries of the world. When , therefore, they deemed it wise to create an Electoral
Commission as a constitutional organ and invested it with the exclusive function of passing upon and
determining the election, returns and qualifications of the members of the National Assembly, they must have
done so not only in the light of their own experience but also having in view the experience of other
enlightened peoples of the world. The creation of the Electoral Commission was designed to remedy certain
evils of which the framers of our Constitution were cognizant. Notwithstanding the vigorous opposition of
some members of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by
a vote of 98 against 58. All that can be said now is that, upon the approval of the constitutional the creation of
the Electoral Commission is the expression of the wisdom and "ultimate justice of the people". (Abraham
Lincoln, First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer in its
totality all the powers previously exercised by the legislature in matters pertaining to contested elections of its
members, to an independent and impartial tribunal. It was not so much the knowledge and appreciation of
contemporary constitutional precedents, however, as the long-felt need of determining legislative contests
devoid of partisan considerations which prompted the people, acting through their delegates to the Convention,
to provide for this body known as the Electoral Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented to off-set partisan influence in its deliberations
was created, and further endowed with judicial temper by including in its membership three justices of the
Supreme Court.
The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution. Although it
is not a power in our tripartite scheme of government, it is, to all intents and purposes, when acting within the
limits of its authority, an independent organ. It is, to be sure, closer to the legislative department than to any
other. The location of the provision (section 4) creating the Electoral Commission under Article VI entitled
"Legislative Department" of our Constitution is very indicative. Its compositions is also significant in that it is
constituted by a majority of members of the legislature. But it is a body separate from and independent of the
legislature.
The grant of power to the Electoral Commission to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep.,
1; State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power claimed in behalf of the
National Assembly that said body may regulate the proceedings of the Electoral Commission and cut off the
power of the commission to lay down the period within which protests should be filed, the grant of power to
the commission would be ineffective. The Electoral Commission in such case would be invested with the
power to determine contested cases involving the election, returns and qualifications of the members of the
National Assembly but subject at all times to the regulative power of the National Assembly. Not only would
the purpose of the framers of our Constitution of totally transferring this authority from the legislative body be
frustrated, but a dual authority would be created with the resultant inevitable clash of powers from time to
time. A sad spectacle would then be presented of the Electoral Commission retaining the bare authority of
taking cognizance of cases referred to, but in reality without the necessary means to render that authority
effective whenever and whenever the National Assembly has chosen to act, a situation worse than that
intended to be remedied by the framers of our Constitution. The power to regulate on the part of the National
Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of the entire

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proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the constitutional
grant. It is obvious that this result should not be permitted.
We are not insensible to the impassioned argument or the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and independence of the national Assembly as a coordinate
department of the government and of according validity to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the one or the performance of the other is also conferred
(Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in filing protests before the Electoral Commission, therefore,
the incidental power to promulgate such rules necessary for the proper exercise of its exclusive power to judge
all contests relating to the election, returns and qualifications of members of the National Assembly, must be
deemed by necessary implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any reasonable time, to the disturbance of the tranquillity
and peace of mind of the members of the National Assembly. But the possibility of abuse is not argument
against the concession of the power as there is no power that is not susceptible of abuse. In the second place, if
any mistake has been committed in the creation of an Electoral Commission and in investing it with exclusive
jurisdiction in all cases relating to the election, returns, and qualifications of members of the National
Assembly, the remedy is political, not judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not intended to be corrected by the judiciary. We
believe, however, that the people in creating the Electoral Commission reposed as much confidence in this
body in the exclusive determination of the specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the agencies of the government were designed by the
Constitution to achieve specific purposes, and each constitutional organ working within its own particular
sphere of discretionary action must be deemed to be animated with the same zeal and honesty in
accomplishing the great ends for which they were created by the sovereign will. That the actuations of these
constitutional agencies might leave much to be desired in given instances, is inherent in the perfection of
human institutions. In the third place, from the fact that the Electoral Commission may not be interfered with
in the exercise of its legitimate power, it does not follow that its acts, however illegal or unconstitutional, may
not be challenge in appropriate cases over which the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case, there are considerations of
equitable character that should not be overlooked in the appreciation of the intrinsic merits of the controversy.
The Commonwealth Government was inaugurated on November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of Article XV thereof, went into effect. The new National
Assembly convened on November 25th of that year, and the resolution confirming the election of the
petitioner, Jose A. Angara was approved by that body on December 3, 1935. The protest by the herein
respondent Pedro Ynsua against the election of the petitioner was filed on December 9 of the same year. The
pleadings do not show when the Electoral Commission was formally organized but it does appear that on
December 9, 1935, the Electoral Commission met for the first time and approved a resolution fixing said date
as the last day for the filing of election protest. When, therefore, the National Assembly passed its resolution of
December 3, 1935, confirming the election of the petitioner to the National Assembly, the Electoral
Commission had not yet met; neither does it appear that said body had actually been organized. As a mater of

fact, according to certified copies of official records on file in the archives division of the National Assembly
attached to the record of this case upon the petition of the petitioner, the three justices of the Supreme Court
the six members of the National Assembly constituting the Electoral Commission were respectively designated
only on December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested
elections of members of the National Assembly had the effect of limiting or tolling the time for the
presentation of protests, the result would be that the National Assembly on the hypothesis that it still
retained the incidental power of regulation in such cases had already barred the presentation of protests
before the Electoral Commission had had time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This result was not and could
not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming the election of members against
whom no protests had been filed at the time of its passage on December 3, 1935, can not be construed as a
limitation upon the time for the initiation of election contests. While there might have been good reason for the
legislative practice of confirmation of the election of members of the legislature at the time when the power to
decide election contests was still lodged in the legislature, confirmation alone by the legislature cannot be
construed as depriving the Electoral Commission of the authority incidental to its constitutional power to be
"the sole judge of all contest relating to the election, returns, and qualifications of the members of the National
Assembly", to fix the time for the filing of said election protests. Confirmation by the National Assembly of
the returns of its members against whose election no protests have been filed is, to all legal purposes,
unnecessary. As contended by the Electoral Commission in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the
election of any member is not required by the Constitution before he can discharge his duties as such member.
As a matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a memberelect to a seat in the national Assembly and to render him eligible to any office in said body (No. 1, par. 1,
Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a member-elect to take his seat. The return of the proper
election officers is sufficient, and the member-elect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694,
695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested elections where
the decision is adverse to the claims of the protestant. In England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter the same upon the Journals, and to give such directions
for confirming or altering the return, or for the issue of a writ for a new election, or for carrying into execution
the determination as circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is
believed, the order or decision of the particular house itself is generally regarded as sufficient, without any
actual alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed.,
sec. 166).
Under the practice prevailing when the Jones Law was still in force, each house of the Philippine Legislature
fixed the time when protests against the election of any of its members should be filed. This was expressly
authorized by section 18 of the Jones Law making each house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec. 478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and manner of filing contest in the election of member of said
bodies. As a matter of formality, after the time fixed by its rules for the filing of protests had already expired,
each house passed a resolution confirming or approving the returns of such members against whose election no

125

protests had been filed within the prescribed time. This was interpreted as cutting off the filing of further
protests against the election of those members not theretofore contested (Amistad vs. Claravall [Isabela],
Second Philippine Legislature, Record First Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth
Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine Legislature, Record First Period,
pp. 637-640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record First
Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature, Record First Period,
vol. III, No. 56, pp. 892, 893). The Constitution has repealed section 18 of the Jones Law. Act No. 3387,
section 478, must be deemed to have been impliedly abrogated also, for the reason that with the power to
determine all contest relating to the election, returns and qualifications of members of the National Assembly,
is inseparably linked the authority to prescribe regulations for the exercise of that power. There was thus no
law nor constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed
on December 3, 1935, the time for the filing of contests against the election of its members. And what the
National Assembly could not do directly, it could not do by indirection through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions and duties often makes
difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised
finally to resolve the conflict and allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and
controversies, and is the power and duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation with specific powers
and functions to execute and perform, closer for purposes of classification to the legislative than to
any of the other two departments of the governments.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and
complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to have an independent
constitutional organ pass upon all contests relating to the election, returns and qualifications of
members of the National Assembly, devoid of partisan influence or consideration, which object
would be frustrated if the National Assembly were to retain the power to prescribe rules and
regulations regarding the manner of conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law
making each house of the Philippine Legislature respectively the sole judge of the elections, returns
and qualifications of its elective members, but also section 478 of Act No. 3387 empowering each
house to prescribe by resolution the time and manner of filing contests against the election of its
members, the time and manner of notifying the adverse party, and bond or bonds, to be required, if
any, and to fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the election is contested or not, is not essential
before such member-elect may discharge the duties and enjoy the privileges of a member of the
National Assembly.
(m) That confirmation by the National Assembly of the election of any member against whom no
protest had been filed prior to said confirmation, does not and cannot deprive the Electoral
Commission of its incidental power to prescribe the time within which protests against the election
of any member of the National Assembly should be filed.
We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro Ynsua
against the election of the herein petitioner Jose A. Angara, and that the resolution of the National Assembly of
December 3, 1935 can not in any manner toll the time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor prevent the filing of a protest within such time as the
rules of the Electoral Commission might prescribe.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns
and qualifications of members of the National Assembly.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present controversy,
we deem it unnecessary to determine whether the Electoral Commission is an inferior tribunal, corporation,
board or person within the purview of sections 226 and 516 of the Code of Civil Procedure.

(g) That under the organic law prevailing before the present Constitution went into effect, each
house of the legislature was respectively the sole judge of the elections, returns, and qualifications
of their elective members.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs against the
petitioner. So ordered.

(h) That the present Constitution has transferred all the powers previously exercised by the
legislature with respect to contests relating to the elections, returns and qualifications of its
members, to the Electoral Commission.

126

INFORMATION TECHNOLOGY FOUNDATION VS COMELEC

Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local
Government Code;

http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/159139.htm
MARIANO VS COMELEC
Republic of the Philippines
SUPREME COURT
Manila

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive term"
limit for local elective officials, in violation of Section 8, Article X and Section 7,
Article VI of the Constitution.
3. Section 52 of R.A. No. 7854 is unconstitutional for:
(a) it increased the legislative district of Makati only by special
law (the Charter in violation of the constitutional provision
requiring a general reapportionment law to be passed by Congress
within three (3) years following the return of every census;

EN BANC

G.R. No. 118577 March 7, 1995

(b) the increase in legislative district was not expressed in the title
of the bill; and

JUANITO MARIANO, JR. et al., petitioners,


vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

(c) the addition of another legislative district in Makati is not in


accord with Section 5 (3), Article VI of the Constitution for as of
the latest survey (1990 census), the population of Makati stands at
only 450,000.

G.R. No. 118627 March 7, 1995


JOHN R. OSMEA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

G.R. No. 118627 was filed by the petitioner John H. Osmea as senator, taxpayer, and concerned citizen.
Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated.
We find no merit in the petitions.
I
Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus:

PUNO, J.:
At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as unconstitutional. R.A.
No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a
Highly Urbanized City to be known as the City of Makati." 1
G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners Juanito
Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo Pascual, Teresita
Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of the petitioners, only
Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan, Taguig, Metro Manila. Suing as
taxpayers, they assail as unconstitutional sections 2, 51, and 52 of R.A. No. 7854 on the following grounds:
1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial
jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of

Sec. 2. The City of Makati. The Municipality of Makati shall be converted into a
highly urbanized city to be known as the City of Makati, hereinafter referred to as the
City, which shall comprise the present territory of the Municipality of Makati in
Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by
Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on
the southeast by the municipalities of Pateros and Taguig; on the southwest by the City
of Pasay and the Municipality of Taguig; and, on the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by the appropriate
agency or forum of existing boundary disputes or cases involving questions of territorial
jurisdiction between the City of Makati and the adjoining local government units.
(Emphasis supplied)

127

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local
Government Code which require that the area of a local government unit should be made by metes and bounds
with technical descriptions. 2
The importance of drawing with precise strokes the territorial boundaries of a local unit of government cannot
be overemphasized. The boundaries must be clear for they define the limits of the territorial jurisdiction of a
local government unit. It can legitimately exercise powers of government only within the limits, its acts
are ultra vires. Needless to state, any uncertainty in the boundaries of local government units will sow costly
conflicts in the exercise of governmental powers which ultimately will prejudice the people's welfare. This is
the evil sought to avoided by the Local Government Code in requiring that the land area of a local government
unit must be spelled out in metes and bounds, with technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the description
made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the delineation of the land area of
the proposed City of Makati will cause confusion as to its boundaries. We note that said delineation did not
change even by an inch the land area previously covered by Makati as a municipality. Section 2 did not add,
subtract, divide, or multiply the established land area of Makati. In language that cannot be any clearer, section
2 stated that, the city's land area "shall comprise the present territory of the municipality."
The deliberations of Congress will reveal that there is a legitimate reason why the land area of the proposed
City of Makati was not defined by metes and bounds, with technical descriptions. At the time of the
consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and Taguig over
Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-equal department of
government, legislators felt that the dispute should be left to the courts to decide. They did not want to
foreclose the dispute by making a legislative finding of fact which could decide the issue. This would have
ensued if they defined the land area of the proposed city by its exact metes and bounds, with technical
descriptions. 3 We take judicial notice of the fact that Congress has also refrained from using the metes and
bounds description of land areas of other local government units with unsettled boundary disputes. 4
We hold that the existence of a boundary dispute does not per se present an insurmountable difficulty which
will prevent Congress from defining with reasonable certitude the territorial jurisdiction of a local government
unit. In the cases at bench, Congress maintained the existing boundaries of the proposed City of Makati but as
an act of fairness, made them subject to the ultimate resolution by the courts. Considering these peculiar
circumstances, we are not prepared to hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the
submission of the Solicitor General in this regard, viz.:
Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that
the requirement stated therein, viz.: "the territorial jurisdiction of newly created or
converted cities should be described by meted and bounds, with technical descriptions"
was made in order to provide a means by which the area of said cities may be
reasonably ascertained. In other words, the requirement on metes and bounds was meant
merely as tool in the establishment of local government units. It is not an end in
itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably
ascertained, i.e., by referring to common boundaries with neighboring municipalities, as
in this case, then, it may be concluded that the legislative intent behind the law has been
sufficiently served.

Certainly, Congress did not intends that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as petitioners
seem to imply. To require such description in the law as a condition sine qua non for its
validity would be to defeat the very purpose which the Local Government Code to seeks
to serve. The manifest intent of the Code is to empower local government units and to
give them their rightful due. It seeks to make local governments more responsive to the
needs of their constituents while at the same time serving as a vital cog in national
development. To invalidate R.A. No. 7854 on the mere ground that no cadastral type of
description was used in the law would serve the letter but defeat the spirit of the Code. It
then becomes a case of the master serving the slave, instead of the other way around.
This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when ascertained, although it may
not be consistent with the strict letter of the statute. Courts will not follow the letter of
the statute when to do so would depart from the true intent of the legislature or would
otherwise yield conclusions inconsistent with the general purpose of the act. (Torres v.
Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA
1105). Legislation is an active instrument of government, which, for purposes of
interpretation, means that laws have ends to achieve, and statutes should be so construed
as not to defeat but to carry out such ends and purposes (Bocolbo v. Estanislao, 72
SCRA 520). The same rule must indubitably apply to the case at bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No. 7854.
Section 51 states:
Sec. 51. Officials of the City of Makati. The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held and the
duly elected officials shall have already qualified and assume their
offices: Provided, The new city will acquire a new corporate existence. The appointive
officials and employees of the City shall likewise continues exercising their functions
and duties and they shall be automatically absorbed by the city government of the City
of Makati.
They contend that this section collides with section 8, Article X and section 7, Article VI of the Constitution
which provide:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for more
than three consecutive terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his service for the full term
for which he was elected.
xxx xxx xxx

128

Sec. 7. The Members of the House of Representatives shall be elected for a term of three
years which shall begin, unless otherwise provided by law, at noon on the thirtieth day
of June next following their election.
No Member of the House of Representatives shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered
as an interruption in the continuity of his service for the full term for which he was
elected.
Petitioners stress that under these provisions, elective local officials, including Members of the House of
Representative, have a term of three (3) years and are prohibited from serving for more than
three (3)consecutive terms. They argue that by providing that the new city shall acquire a new corporate
existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective officials of Makati
and disregards the terms previously served by them. In particular, petitioners point that section 51 favors the
incumbent Makati Mayor, respondent Jejomar Binay, who has already served for two (2) consecutive terms.
They further argue that should Mayor Binay decide to run and eventually win as city mayor in the coming
elections, he can still run for the same position in 1998 and seek another three-year consecutive term since his
previous three-year consecutive term asmunicipal mayor would not be counted. Thus, petitioners conclude that
said section 51 has been conveniently crafted to suit the political ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section 51. The requirements before a litigant can
challenge the constitutionality of a law are well delineated. They are: 1) there must be an actual case or
controversy; (2) the question of constitutionality must be raised by the proper party; (3) the constitutional
question must be raised at the earliest possible opportunity; and (4) the decision on the constitutional question
must be necessary to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The petition is premised on the occurrence of
many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections; that he
would be re-elected in said elections; and that he would seek re-election for the same position in the 1998
elections. Considering that these contingencies may or may not happen, petitioners merely pose a hypothetical
issue which has yet to ripen to an actual case or controversy. Petitioners who are residents of Taguig (except
Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist this futuristic issue in a
petition for declaratory relief over which this Court has no jurisdiction.
III
Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of R.A. No.
7854. Section 52 of the Charter provides:
Sec. 52. Legislative Districts. Upon its conversion into a highly-urbanized city,
Makati shall thereafter have at least two (2) legislative districts that shall initially
correspond to the two (2) existing districts created under Section 3(a) of Republic Act.
No. 7166 as implemented by the Commission on Elections to commence at the next
national elections to be held after the effectivity of this Act. Henceforth, barangays
Magallanes, Dasmarias and Forbes shall be with the first district, in lieu of Barangay
Guadalupe-Viejo which shall form part of the second district. (emphasis supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional for: (1)
reapportionment6 cannot made by a special law, (2) the addition of a legislative district is not expressed in the
title of the bill 7 and (3) Makati's population, as per the 1990 census, stands at only four hundred fifty thousand
(450,000).
These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that
reapportionment of legislative districts may be made through a special law, such as in the charter of a new city.
The Constitution 9 clearly provides that Congress shall be composed of not more than two hundred fifty (250)
members, unless otherwise fixed by law. As thus worded, the Constitution did not preclude Congress from
increasing its membership by passing a law, other than a general reapportionment of the law. This is its exactly
what was done by Congress in enacting R.A. No. 7854 and providing for an increase in Makati's legislative
district. Moreover, to hold that reapportionment can only be made through a general apportionment law, with a
review of all the legislative districts allotted to each local government unit nationwide, would create an
inequitable situation where a new city or province created by Congress will be denied legislative
representation for an indeterminate period of time. 10 The intolerable situations will deprive the people of a
new city or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.
Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with section
5(3), Article VI 12 of the Constitution for as of the latest survey (1990 census), the population of Makati stands
at only four hundred fifty thousand (450,000). 13 Said section provides, inter alia, that a city with a population
of at least two hundred fifty thousand (250,000) shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four hundred fifty thousand (450,000), its legislative
district may still be increased since it has met the minimum population requirement of two hundred fifty
thousand (250,000). In fact, section 3 of the Ordinance appended to the Constitution provides that a city whose
population has increased to more than two hundred fifty thousand (250,000) shall be entitled to at least one
congressional representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional legislative district in
Makati should have been expressly stated in the title of the bill. In the same case of Tobias v. Abalos, op cit.,
we reiterated the policy of the Court favoring a liberal construction of the "one title-one subject" rule so as not
to impede legislation. To be sure, with Constitution does not command that the title of a law should exactly
mirror, fully index, or completely catalogue all its details. Hence, we ruled that "it should be sufficient
compliance if the title expresses the general subject and all the provisions are germane to such general
subject."
WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.
SO ORDERED.

CUTARAN VS DENR
THIRD DIVISION

129

[G.R. No. 134958. January 31, 2001]


PATRICIO CUTARAN, DAVID DANGWAS and PACIO DOSIL, petitioners, vs. DEPARTMENT OF
ENVIRONMENT and NATURAL RESOURCES, herein represented by SEC. VICTOR O.
RAMOS, OSCAR M. HAMADA and GUILLERMO S. FIANZA, in his capacity as Chairman
of Community Special Task Force on Ancestral Lands (CSTFAL), Baguio City, respondents.
DECISION
GONZAGA-REYES, J.:
Before us is a petition for review of the decision rendered by the Court of Appeals on March 25, 1998
and the order dated August 5, 1998 in CA-G.R SP No. 43930, a petition for prohibition originally filed with the
appellate court to enjoin the respondent DENR from implementing DENR Special Order Nos. 31, as amended
by 31-A and 31-B, series of 1990, Special Order No. 25, series of 1993 and all other administrative issuances
relative thereto, for having been issued without prior legislative authority.
In 1990 the Assistant Secretary for Luzon Operations of the DENR issued Special Order no.
31[1] entitled Creation of a Special Task force on acceptance, identification, evaluation and delineation of
ancestral land claims in the Cordillera Administrative Region. The special task force created thereunder was
authorized to accept and evaluate and delineate ancestral land claims within the said area, and after due
evaluation of the claims, to issue appropriate land titles (Certificate of Ancestral Land Claim) in accordance
with existing laws.[2] On January 15, 1993 the Secretary of the DENR issued Special Order no. 25[3] entitled
Creation of Special Task Forces provincial and community environment and natural resources offices for the
identification, delineation and recognition of ancestral land claims nationwide and Department Administrative
Order no. 02,[4] containing the Implementing Rules and Guidelines of Special Order no. 25.
In 1990, the same year Special Order no. 31 was issued, the relatives of herein petitioners filed separate
applications for certificate of ancestral land claim (CALC) over the land they, respectively occupy inside the
Camp John Hay Reservation. In 1996 the applications were denied by the DENR Community Special Task
Force on Ancestral Lands on the ground that the Bontoc and Applai tribes to which they belong are not among
the recognized tribes of Baguio City. Also pursuant to the assailed administrative issuances the Heirs of Apeng
Carantes filed an application [5] for certification of ancestral land claim over a parcel of land also within Camp
John Hay and overlapping some portions of the land occupied by the petitioners. Petitioners claim that even if
no certificate of ancestral land claim has yet been issued by the DENR in favor of the heirs of Carantes, the
latter, on the strength of certain documents issued by the DENR, tried to acquire possession of the land they
applied for, including the portion occupied by herein petitioners. Petitioners also allege that the heirs of
Carantes removed some of the improvements they introduced within the area they actually occupy and if not
for the petitioners timely resistance to such intrusions, the petitioners would have been totally evicted
therefrom.
Hence, this petition for prohibition originally filed with the Court of Appeals to enjoin the respondent
DENR from implementing the assailed administrative issuances and from processing the application for
certificate of ancestral land claim (CALC) filed by the heirs of Carantes on the ground that the said
administrative issuances are void for lack of legal basis.

The Court of Appeals[6] held that the assailed DENR Special Orders Nos. 31, 31-A, 31-B issued in 1990
prior to the effectivity of RA 7586 known asthe National Integrated Protected Areas Systems (NIPAS) Act of
1992, are of no force and effect for pre-empting legislative prerogative but sustained the validity of DENR
Special Order No. 25, and its implementing rules (DAO No. 02, series of 1993) by the appellate court on the
ground that they were issued pursuant to the powers delegated to the DENR under section 13 of RA 7586,
which reads:
Section 13. Ancestral Lands and Rights over Them.- Ancestral lands and customary rights and interest arising
therefrom shall be accorded due recognition. The DENR shall prescribe rules and regulations to govern
ancestral lands within protected areas: Provided, that the DENR shall have no power to evict indigenous
communities from their present occupancy nor resettle them to another area without their consent: Provided,
however, that all rules and regulations, whether adversely affecting said communities or not, shall be subjected
to notice and hearing to be participated in by members of concerned indigenous community.[7]
The petitioners filed with this Court a petition for review of the appellate courts decision on the ground
that the Court of Appeals erred in upholding the validity of Special Order No. 25 and its implementing rules.
The petitioners seek to enjoin the respondent DENR from processing the application for certificate of ancestral
land claim filed by the Heirs of Carantes. Petitioners contend that in addition to the failure of the DENR to
publish the assailed administrative issuances in a newspaper of general circulation prior to its implementation,
RA 7586, which provides for the creation of a National Integrated Protected Areas System, does not contain
the slightest implication of a grant of authority to the DENR to adjudicate or confer title over lands occupied
by indigenous communities. It is contended that the said law only grants DENR administrative and managerial
powers over designated national and natural parks called protected areas wherein rare and endangered species
of plants and animals inhabit.[8] The petitioners further allege that the subsequent passage of in 1997 of
Republic Act 8371, otherwise known as the Indigenous Peoples Rights Act, wherein the power to evaluate and
issue certificates of ancestral land titles is vested in the National Commission on Indigenous Cultural
Communities/ Indigenous People (NCIP) is unmistakable indication of the legislatures withholding of
authority from the DENR to confer title over lands occupied by indigenous communities. [9] Finally, the
petitioners claim that the validity of the questioned DENR special orders cannot be based on the constitutional
provisions regarding the protection of cultural communities as the said provisions are policy statements to
guide the legislature in the exercise of their law-making powers and by themselves are not self-executory.
The Solicitor-General filed memorandum in behalf of the respondent DENR praying for the affirmance
of the appellate courts decision. The respondent argues that the subject DENR special orders were issued
pursuant to the powers granted by RA 7586 to the DENR to protect the socio-economic interests of indigenous
peoples. The land occupied by the petitioners is within a protected area as defined by the said law and is well
within the jurisdiction of the DENR. The respondent likewise claims that the petitioners are estopped from
contesting the validity of the DENR administrative issuances considering that their relatives applied for
certificates of ancestral land claim (CALC) under the said special orders which applications were, however,
denied. The petitioners should not be allowed to challenge the same administrative orders which they
themselves previously invoked.
The respondents do not contest the ruling of the appellate court as regards the nullity of Special Order
no. 31, as amended. The sole issue before us concerns the validity of DENR Special Order no. 25, series of
1993 and its implementing rules DAO no. 02. The petitioners main contention is that the assailed
administrative orders were issued beyond the jurisdiction or power of the DENR secretary under the NIPAS
Act of 1992. They seek to enjoin the respondents from processing the application for ancestral land claim filed

130

by the heirs of Carantes because if approved, the petitioners may be evicted from the portion of the land they
occupy which overlaps the land applied for by the Carantes heirs.
From a reading of the records it appears to us that the petition was prematurely filed. Under the
undisputed facts there is as yet no justiciable controversy for the court to resolve and the petition should have
been dismissed by the appellate court on this ground.
We gather from the allegations of the petition and that of the petitioners memorandum that the alleged
application for certificate of ancestral land claim (CALC) filed by the heirs of Carantes under the assailed
DENR special orders has not been granted nor the CALC applied for, issued. The DENR is still processing the
application of the heirs of Carantes for a certificate of ancestral land claim, which the DENR may or may not
grant. It is evident that the adverse legal interests involved in this case are the competing claims of the
petitioners and that of the heirs of Carantes to possess a common portion of a piece of land. As the undisputed
facts stand there is no justiciable controversy between the petitioners and the respondents as there is no actual
or imminent violation of the petitioners asserted right to possess the land by reason of the implementation of
the questioned administrative issuances.
A justiciable controversy has been defined as, a definite and concrete dispute touching on the legal
relations of parties having adverse legal interests [10] which may be resolved by a court of law through the
application of a law.[11] Courts have no judicial power to review cases involving political questions and as a
rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and in cases
that has become moot.[12] Subject to certain well-defined exceptions [13] courts will not touch an issue involving
the validity of a law unless there has been a governmental act accomplished or performed that has a direct
adverse effect on the legal right of the person contesting its validity. [14] In the case of PACU vs. Secretary of
Education[15] the petition contesting the validity of a regulation issued by the Secretary of Education requiring
private schools to secure a permit to operate was dismissed on the ground that all the petitioners have permits
and are actually operating under the same. The petitioners questioned the regulation because of the possibility
that the permit might be denied them in the future. This Court held that there was no justiciable controversy
because the petitioners suffered no wrong by the implementation of the questioned regulation and therefore,
they are not entitled to relief. A mere apprehension that the Secretary of Education will withdraw the permit
does not amount to a justiciable controversy. The questioned regulation in the PACU case may be questioned
by a private school whose permit to operate has been revoked or one whose application therefor has been
denied.[16]
This Court cannot rule on the basis of petitioners speculation that the DENR will approve the
application of the heirs of Carantes. There must be an actual governmental act which directly causes or will
imminently cause injury to the alleged legal right of the petitioner to possess the land before the jurisdiction of
this Court may be invoked. There is no showing that the petitioners were being evicted from the land by the
heirs of Carantes under orders from the DENR. The petitioners allegation that certain documents from the
DENR were shown to them by the heirs of Carantes to justify eviction is vague, and it would appear that the
petitioners did not verify if indeed the respondent DENR or its officers authorized the attempted
eviction. Suffice it to say that by the petitioners own admission that the respondents are still processing and
have not approved the application of the heirs of Carantes, the petitioners alleged right to possess the land is
not violated nor is in imminent danger of being violated, as the DENR may or may not approve Carantes
application. Until such time, the petitioners are simply speculating that they might be evicted from the
premises at some future time. Borrowing from the pronouncements of this Court in the PACU case, They (the
petitioners) have suffered no wrong under the terms of the lawand, naturally need no relief in the form they

now seek to obtain.[17] If indeed the heirs of Carantes are trying to enter the land and disturbing the petitioners
possession thereof even without prior approval by the DENR of the claim of the heirs of Carantes, the case is
simply one for forcible entry.
WHEREFORE, for lack of justiciable controversy, the decision of the appellate court is hereby set
aside.
SO ORDERED.

MONTESCARLOS VS COMELEC
EN BANC

[G.R. No. 152295. July 9, 2002]

ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, RONALD


ATANGAN and CLARIZA DECENA, and OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs.COMMISSION ON ELECTIONS, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, DEPARTMENT OF BUDGET AND
MANAGEMENT, EXECUTIVE SECRETARY of the OFFICE OF THE PRESIDENT,
SENATOR FRANKLIN DRILON in his capacity as Senate President and SENATOR
AQUILINO PIMENTEL in his capacity as Minority Leader of the Senate of the Philippines,
CONGRESSMAN JOSE DE VENECIA in his capacity as Speaker, CONGRESSMAN
AGUSTO L. SYJOCO in his capacity as Chairman of the Committee on Suffrage and
Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II in his capacity as
Chairman of the Committee on Local Government of the House of Representatives, THE
PRESIDENT OF THE PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG
KABATAAN, AND ALL THEIR AGENTS AND REPRESENTATIVES, respondents.
DECISION
CARPIO, J.:
The Case
Before us is a petition for certiorari, prohibition and mandamus with prayer for a temporary restraining
order or preliminary injunction. The petition seeks to prevent the postponement of the Sangguniang
Kabataan (SK for brevity) elections originally scheduled last May 6, 2002. The petition also seeks to prevent
the reduction of the age requirement for membership in the SK.

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Petitioners, who are all 20 years old, filed this petition as a taxpayers and class suit, on their own behalf
and on behalf of other youths similarly situated. Petitioners claim that they are in danger of being disqualified
to vote and be voted for in the SK elections should the SK elections on May 6, 2002 be postponed to a later
date. Under the Local Government Code of 1991 (R.A. No. 7160), membership in the SK is limited to youths
at least 15 but not more than 21 years old.
Petitioners allege that public respondents connived, confederated and conspired to postpone the May 6,
2002 SK elections and to lower the membership age in the SK to at least 15 but less than 18 years of
age. Petitioners assail the alleged conspiracy because youths at least 18 but not more than 21 years old will be
summarily and unduly dismembered, unfairly discriminated, unnecessarily disenfranchised, unjustly
disassociated and obnoxiously disqualified from the SK organization.[1]
Thus, petitioners pray for the issuance of a temporary restraining order or preliminary injunction a) To prevent, annul or declare unconstitutional any law, decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like in postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6, 2002 SK elections set by the present law and in
accordance with Comelec Resolutions No. 4713 and 4714 and to expedite the funding of the SK elections.
c) In the alternative, if the SK elections will be postponed for whatever reason, there must be a definite date
for said elections, for example, July 15, 2002, and the present SK membership, except those incumbent SK
officers who were elected on May 6, 1996, shall be allowed to run for any SK elective position even if they are
more than 21 years old.
d) To direct the incumbent SK officers who are presently representing the SK in every sanggunian and the
NYC to vacate their post after the barangay elections. [2]
The Facts
The SK is a youth organization originally established by Presidential Decree No. 684 as the Kabataang
Barangay (KB for brevity). The KB was composed of all barangay residents who were less than 18 years old,
without specifying the minimum age. The KB was organized to provide its members with the opportunity to
express their views and opinions on issues of transcendental importance.[3]
The Local Government Code of 1991 renamed the KB to SK and limited SK membership to those
youths at least 15 but not more than 21 years of age.[4] The SK remains as a youth organization in every
barangay tasked to initiate programs to enhance the social, political, economic, cultural, intellectual, moral,
spiritual, and physical development of the youth. [5] The SK in every barangay is composed of a chairperson
and seven members, all elected by the Katipunan ng Kabataan. The Katipunan ng Kabataan in every barangay
is composed of all citizens actually residing in the barangay for at least six months and who meet the
membership age requirement.
The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK elections to the first
Monday of May of 1996 and every three years thereafter. RA No. 7808 mandated the Comelec to supervise the

conduct of the SK elections under rules the Comelec shall promulgate. Accordingly, the Comelec on
December 4, 2001 issued Resolution Nos. 4713[6] and 4714[7] to govern the SK elections on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros for brevity) sent a
letter[8] to the Comelec, demanding that the SK elections be held as scheduled on May 6, 2002. Montesclaros
also urged the Comelec to respond to her letter within 10 days upon receipt of the letter, otherwise, she will
seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo (Chairman Benipayo for brevity), then Comelec Chairman,
wrote identical letters to the Speaker of the House [9] and the Senate President[10] about the status of pending
bills on the SK and Barangay elections. In his letters, the Comelec Chairman intimated that it was
operationally very difficult to hold both elections simultaneously in May 2002. Instead, the Comelec Chairman
expressed support for the bill of Senator Franklin Drilon that proposed to hold the Barangay elections in May
2002 and postpone the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of Montesclaros. Subsequently, petitioners
received a copy of ComelecEn Banc Resolution No. 4763[11] dated February 5, 2002 recommending to
Congress the postponement of the SK elections to November 2002 but holding the Barangay elections in May
2002 as scheduled.[12]
On March 6, 2002, the Senate and the House of Representatives passed their respective bills postponing
the SK elections. On March 11, 2002, the Bicameral Conference Committee (Bicameral Committee for
brevity) of the Senate and the House came out with a Report[13]recommending approval of the reconciled bill
consolidating Senate Bill No. 2050[14] and House Bill No. 4456.[15] The Bicameral Committees consolidated
bill reset the SK and Barangay elections to July 15, 2002 and lowered the membership age in the SK to at least
15 but not more than 18 years of age.
On March 11, 2002, petitioners filed the instant petition.
On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill and on March 13,
2002, the House of Representatives approved the same. The President signed the approved bill into law on
March 19, 2002.
The Issues
Petitioners[16] raise the following grounds in support of their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS
CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK ELECTIONS.
II.

132

RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS


CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE, DISENFRANCHISE, SINGLE OUT
AND DISMEMBER THE SK MEMBERS WHO ARE 18 BUT NOT LESS [17] (SIC) THAN 21 YEARS OLD
COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND UNCONSTITUTIONALLY THUS
CONSTITUTED (SIC) WITH GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE SK ELECTION PURPORTEDLY
TO POSTPONE THE SAME IN ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE ARE AVAILABLE FUNDS FOR THE
PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT ON THEIR RESPECTIVE
OFFICES CONTRARY TO THE ENVISION (SIC) OF THE CREATION OF THE SK ORGANIZATION,
HENCE, IN VIOLATION OF LAW AND CONSTITUTION.[18]
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events that have transpired since
petitioners filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002 Barangay elections were not held as
scheduled.
2. Congress enacted RA No. 9164 [19] which provides that voters and candidates for the SK
elections must be at least 15 but less than 18 years of age on the day of the election. [20] RA
No. 9164 also provides that there shall be a synchronized SK and Barangay elections on July
15, 2002.
3. The Comelec promulgated Resolution No. 4846, the rules and regulations for the conduct of
the July 15, 2002 synchronized SK and Barangay elections.

Petitioners, who all claim to be 20 years old, argue that the postponement of the May 6, 2002 SK
elections disenfranchises them, preventing them from voting and being voted for in the SK
elections. Petitioners theory is that if the SK elections were postponed to a date later than May 6, 2002, the
postponement would disqualify from SK membership youths who will turn 21 years old between May 6, 2002
and the date of the new SK elections. Petitioners claim that a reduction in the SK membership age to 15 but
less than 18 years of age from the then membership age of 15 but not more than 21 years of age would
disqualify about seven million youths. The public respondents failure to hold the elections on May 6, 2002
would prejudice petitioners and other youths similarly situated.
Thus, petitioners instituted this petition to: (1) compel public respondents to hold the SK elections on
May 6, 2002 and should it be postponed, the SK elections should be held not later than July 15, 2002; (2)
prevent public respondents from passing laws and issuing resolutions and orders that would lower the
membership age in the SK; and (3) compel public respondents to allow petitioners and those who have turned
more than 21 years old on May 6, 2002 to participate in any re-scheduled SK elections.
The Courts power of judicial review may be exercised in constitutional cases only if all the following
requisites are complied with, namely: (1) the existence of an actual and appropriate case or controversy; (2) a
personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial
review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.[21]
In the instant case, there is no actual controversy requiring the exercise of the power of judicial
review. While seeking to prevent a postponement of the May 6, 2002 SK elections, petitioners are nevertheless
amenable to a resetting of the SK elections to any date not later than July 15, 2002. RA No. 9164 has reset the
SK elections to July 15, 2002, a date acceptable to petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial intervention.
Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering the membership
age in the SK does not present an actual justiciable controversy. A proposed bill is not subject to judicial
review because it is not a law. A proposed bill creates no right and imposes no duty legally enforceable by the
Court. A proposed bill, having no legal effect, violates no constitutional right or duty. The Court has no power
to declare a proposed bill constitutional or unconstitutional because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress. The power of judicial review cannot be exercised in vacuo.
[22]
The second paragraph of Section 1, Article VIII of the Constitution states
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)
Thus, there can be no justiciable controversy involving the constitutionality of a proposed bill. The Court can
exercise its power of judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress from passing any law, or from
setting into motion the legislative mill according to its internal rules. Thus, the following acts of Congress in
the exercise of its legislative powers are not subject to judicial restraint: the filing of bills by members of
Congress, the approval of bills by each chamber of Congress, the reconciliation by the Bicameral Committee

133

of approved bills, and the eventual approval into law of the reconciled bills by each chamber of
Congress. Absent a clear violation of specific constitutional limitations or of constitutional rights of private
parties, the Court cannot exercise its power of judicial review over the internal processes or procedures of
Congress.[23]
The Court has also no power to dictate to Congress the object or subject of bills that Congress should
enact into law. The judicial power to review the constitutionality of laws does not include the power to
prescribe to Congress what laws to enact. The Court has no power to compel Congress by mandamus to enact
a law allowing petitioners, regardless of their age, to vote and be voted for in the July 15, 2002 SK
elections. To do so would destroy the delicate system of checks and balances finely crafted by the Constitution
for the three co-equal, coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the original charter
of the SK, which fixed the maximum age for membership in the SK to youths less than 18 years
old. Petitioners do not have a vested right to the permanence of the age requirement under Section 424 of the
Local Government Code of 1991. Every law passed by Congress is always subject to amendment or repeal by
Congress. The Court cannot restrain Congress from amending or repealing laws, for the power to make laws
includes the power to change the laws.[24]
The Court cannot also direct the Comelec to allow over-aged voters to vote or be voted for in an
election that is limited under RA No. 9164 to youths at least 15 but less than 18 years old. A law is needed to
allow all those who have turned more than 21 years old on or after May 6, 2002 to participate in the July 15,
2002 SK elections. Youths from 18 to 21 years old as of May 6, 2002 are also no longer SK members, and
cannot participate in the July 15, 2002 SK elections. Congress will have to decide whether to enact an
amendatory law.Petitioners remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining this suit. A party must show that he
has been, or is about to be denied some personal right or privilege to which he is lawfully entitled. [25] A party
must also show that he has a real interest in the suit. By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or future, contingent, subordinate, or inconsequential interest. [26]

The only semblance of a constitutional issue, albeit erroneous, that petitioners raise is their claim that
SK membership is a property right within the meaning of the Constitution. [28] Since certain public offices are
reserved for SK officers, petitioners also claim a constitutionally protected opportunity to occupy these public
offices. In petitioners own words, they and others similarly situated stand to lose their opportunity to work in
the government positions reserved for SK members or officers. [29] Under the Local Government Code of 1991,
the president of the federation of SK organizations in a municipality, city or province is an ex-officio member
of the municipal council, city council or provincial board, respectively.[30] The chairperson of the SK in the
barangay is an ex-officio member of the Sangguniang Barangay.[31] The president of the national federation of
SK organizations is an ex-officio member of the National Youth Commission, with rank of a Department
Assistant Secretary.[32]
Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer
qualified because of an amendment in the law cannot complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK elections. SK membership is not a property
right protected by the Constitution because it is a mere statutory right conferred by law. Congress may amend
at any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a [P]ublic office is a public
trust.[33] No one has a vested right to any public office, much less a vested right to an expectancy of holding a
public office. In Cornejo v. Gabriel,[34] decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an
office a property. It is, however, well settled x x x that a public office is not property within the sense of the
constitutional guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative government, the officers being mere agents and not rulers
of the people, one where no one man or set of men has a proprietary or contractual right to an office, but where
every officer accepts office pursuant to the provisions of the law and holds the office as a trust for the people
he represents.(Emphasis supplied)

In the instant case, petitioners seek to enforce a right originally conferred by law on those who were at
least 15 but not more than 21 years old. Now, with the passage of RA No. 9164, this right is limited to those
who on the date of the SK elections are at least 15 but less than 18 years old. The new law restricts
membership in the SK to this specific age group. Not falling within this classification, petitioners have ceased
to be members of the SK and are no longer qualified to participate in the July 15, 2002 SK elections. Plainly,
petitioners no longer have a personal and substantial interest in the SK elections.

Petitioners, who apparently desire to hold public office, should realize from the very start that no one
has a proprietary right to public office. While the law makes an SK officer an ex-officio member of a local
government legislative council, the law does not confer on petitioners a proprietary right or even a proprietary
expectancy to sit in local legislative councils. The constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State policy directing equal access to opportunities
for public service[35] cannot bestow on petitioners a proprietary right to SK membership or a proprietary
expectancy to ex-officio public offices.

This petition does not raise any constitutional issue. At the time petitioners filed this petition, RA No.
9164, which reset the SK elections and reduced the age requirement for SK membership, was not yet enacted
into law. After the passage of RA No. 9164, petitioners failed to assail any provision in RA No. 9164 that could
be unconstitutional. To grant petitioners prayer to be allowed to vote and be voted for in the July 15, 2002 SK
elections necessitates assailing the constitutionality of RA No. 9164. This, petitioners have not done. The
Court will not strike down a law unless its constitutionality is properly raised in an appropriate action and
adequately argued.[27]

Moreover, while the State policy is to encourage the youths involvement in public affairs, [36] this policy
refers to those who belong to the class of people defined as the youth. Congress has the power to define who
are the youth qualified to join the SK, which itself is a creation of Congress. Those who do not qualify because
they are past the age group defined as the youth cannot insist on being part of the youth. In government
service, once an employee reaches mandatory retirement age, he cannot invoke any property right to cling to
his office. In the same manner, since petitioners are now past the maximum age for membership in the SK,
they cannot invoke any property right to cling to their SK membership.

134

The petition must also fail because no grave abuse of discretion attended the postponement of the SK
elections. RA No. 9164 is now the law that prescribes the qualifications of candidates and voters for the SK
elections. This law also fixes the date of the SK elections.Petitioners are not even assailing the constitutionality
of RA No. 9164. RA No. 9164 enjoys the presumption of constitutionality and will apply to the July 15, 2002
SK elections.
Petitioners have not shown that the Comelec acted illegally or with grave abuse of discretion in
recommending to Congress the postponement of the SK elections. The very evidence relied upon by
petitioners contradict their allegation of illegality. The evidence consist of the following: (1) Comelec en
banc Resolution No. 4763 dated February 5, 2002 that recommended the postponement of the SK elections to
2003; (2) the letter of then Comelec Chairman Benipayo addressed to the Speaker of the House of
Representatives and the President of the Senate; and (3) the Conference Committee Report consolidating
Senate Bill No. 2050 and House Bill No. 4456.

WHEREFORE, the petition is DISMISSED for utter lack of merit.


SO ORDERED.

LACSON VS PEREZ
EN BANC

[G.R. No. 147780. May 10, 2001]


The Comelec exercised its power and duty to enforce and administer all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum and recall [37] and to recommend to Congress
effective measures to minimize election spending. [38] The Comelecs acts enjoy the presumption of regularity in
the performance of official duties.[39] These acts cannot constitute proof, as claimed by petitioners, that there
exists a connivance and conspiracy (among) respondents in contravention of the present law. As the Court held
inPangkat Laguna v. Comelec,[40] the Comelec, as the government agency tasked with the enforcement and
administration of elections laws, is entitled to the presumption of regularity of official acts with respect to the
elections.

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,


vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR.
SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147781. May 10, 2001]

The 1987 Constitution imposes upon the Comelec the duty of enforcing and administering all laws and
regulations relative to the conduct of elections. Petitioners failed to prove that the Comelec committed grave
abuse of discretion in recommending to Congress the postponement of the May 6, 2002 SK elections. The
evidence cited by petitioners even establish that the Comelec has demonstrated an earnest effort to address the
practical problems in holding the SK elections on May 6, 2002. The presumption remains that the decision of
the Comelec to recommend to Congress the postponement of the elections was made in good faith in the
regular course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise of judgment that is patent and gross
as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law. [41] Public
respondents having acted strictly pursuant to their constitutional powers and duties, we find no grave abuse of
discretion in their assailed acts.
Petitioners contend that the postponement of the SK elections would allow the incumbent SK officers to
perpetuate themselves in power, depriving other youths of the opportunity to serve in elective SK
positions. This argument deserves scant consideration. While RA No. 9164 contains a hold-over provision,
incumbent SK officials can remain in office only until their successors have been elected or qualified. On July
15, 2002, when the SK elections are held, the hold-over period expires and all incumbent SK officials
automatically cease to hold their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and substantial interest in maintaining this suit. This petition
presents no actual justiciable controversy. Petitioners do not cite any provision of law that is alleged to be
unconstitutional. Lastly, we find no grave abuse of discretion on the part of public respondents.

MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, et


al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO
VILLANUEVA, P/DIR. LEANDRO MENDOZA and P/SR. SUPT. REYNALDO
BERROYA, respondents.
[G.R. No. 147810. May 10, 2001]
THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE,
SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES,
GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR GENERAL LEANDRO MENDOZA, respondents.
RES OLUTIO N
MELO, J.:
On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob armed with
explosives, firearms, bladed weapons, clubs, stones and other deadly weapons assaulting and attempting to

135

break into Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National
Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the
Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of
several alleged leaders and promoters of the rebellion were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which allegedly gave a
semblance of legality to the arrests, the following four related petitions were filed before the Court(1) G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent
application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by
Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G.R. No. 147781 formandamus and/or
review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for a
temporary restraining order filed by Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and
injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Rolando A.
Lumbao; and (4) G.R. No. 147810 for certiorari and prohibition filed by the political party Laban ng
Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President Gloria MacapagalArroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact an in
law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a state
of rebellion in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to
petitioners claim that the proclamation of a state of rebellion is being used by the authorities to justify
warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons
in connection with the rebellion. He states that what is extant are general instructions to law enforcement
officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents Joint
Comments:
[I]t is already the declared intention of the Justice Department and police authorities to obtain regular
warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means
that preliminary investigators will henceforth be conducted.
(Comment, G.R. No. 147780, p. 28; G.R.
No. 147781, p. 18; G.R. No. 147799, p. 16;
G.R. No. 147810, p. 24)

an individual may ask for a preliminary investigation under Rule 112 of the Rules of court, where he may
adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not
he should remain under custody and correspondingly be charged in court. Further, a person subject of a
warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125
of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of
detained persons. Should the detention be without legal ground, the person arrested can charge the arresting
officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the
arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which
they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time
(Sections 2 and 3, Rule 65, Rules of Court).
Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the
petitions at bar.
G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and Mancao
pray that the appropriate court before whom the informations against petitioners are filed be directed to desist
from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved. This
relief is clearly premature considering that as of this date, no complaints or charges have been filed against any
of the petitioners for any crime. And in the event that the same are later filed, this court cannot enjoin criminal
prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in
pursuance of a duly issued warrant.
As regards petitioners prayer that the hold departure orders issued against them be declared null and
void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold
departure orders in their petition. The are not even expressing intention to leave the country in the near
future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose.
Anent petitioners allegations ex abundante ad cautelam in support of their application for the issuance
of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners
from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up
to this very day.
G.R. No. 147781

With this declaration, petitioners apprehensions as to warrantless arrests should be laid to rest.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons
suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so
warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of
rebellion.
Moreover, petitioners contention in G.R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago
Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without
warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an
individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in
matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a
particular act which is sought to be compelled must be clear and complete. Mandamus will not issue the right
to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time,
petitioner Defensor-Santiago has not shown that she is in imminent danger of being arrested without a
warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a
warrant.
G.R. No. 147799

136

Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his part, argues that
the declaration of a state of rebellion is violative of the doctrine of separation of powers, being an
encroachment on the domain of the judiciary which has the constitutional prerogative to determine or interpret
what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the
general rule on the allocation of the governmental powers.
We disagree. To be sure, section 18, Article VII of the Constitution expressly provides that [t]he
President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion
thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000):
xxx The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively
established since matters considered for satisfying the same is a combination of several factors which are not
always accessible to the courts. Besides the absence of testual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information necessary to arrive at such judgment might also prove unmanageable for
the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In
many instances, the evidence upon which the President might decide that there is a need to call out the armed
forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information,
some of which may be classified as highly confidential or affecting the security of the state. In the exercise of
the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great
loss of human lives and mass destruction of property. xxx

However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this
Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the
Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No.
147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to,
together with their agents, representatives, and all persons acting for and in their behalf, are hereby enjoined
from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or
in connection with the May 1, 2001 siege of Malacaang.
SO ORDERED.

DAVID VS MACAPAGAL ARROYO


http://sc.judiciary.gov.ph/jurisprudence/2006/may2006/G.R.%20No.%20171396.htm

ACOP VS GUINGONA
FIRST DIVISION

(at pp. 22-23)


The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this
power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted.

[G.R. No. 134855. July 2, 2002]

G.R. No. 147810

Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule requires that a party
must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a
favorable decision so as to warrant an invocation of the courts jurisdiction and to justify the exercise of the
courts remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here,
petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a
juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it
alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for
the crime of rebellion. Every action must be brought in the name of the party whose legal right has been
invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.
At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming
that its right to freedom of expression and freedom of assembly is affected by the declaration of a state of
rebellion and that said proclamation is invalid for being contrary to the Constitution.

CHIEF SUPT. ROMEO M. ACOP and SR. SUPT. FRANCISCO G. ZUBIA, JR., petitioners-appellants,
vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as Secretary of the Department of
Justice, and SENIOR STATE PROSECUTOR JUDE ROMANO, in his capacity as the
Director of the Government's Witness Protection Program; SPO2 EDUARDO DELOS
REYES and SPO2 CORAZON DELA CRUZ, respondents-appellees.
RES OLUTIO N
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court filed by Chief Supt.
Romeo M. Acop and Sr. Supt. Francisco G. Zubia seeking to reverse and set aside the Decision dated July 30,
1998 of the Regional Trial Court of Quezon City (Branch 89) which dismissed this petition for injunction.

137

The factual antecedents leading to the present petition are as follows:


On May 18, 1995, eleven (11) suspected members of the criminal group known as the Kuratong
Baleleng gang were killed along Commonwealth Avenue in Quezon City in an alleged shootout with the AntiBank Robbery Intelligence Task Group of the Philippine National Police (PNP).

In its Comment, the Office of the Solicitor General (OSG) claims that the petition lacks merit and that
the same has been rendered moot and academic because the coverage of SPO2 delos Reyes and SPO2 dela
Cruz under the Program was already terminated on December 3, 1997 and August 23, 1998, respectively, as
evidenced by the letter of the Director of the Program addressed to the OSG, dated February 10, 1999. [2] In
their comment, private respondents SPO2 delos Reyes and SPO2 dela Cruz agree with the OSG.

SPO2 Eduardo delos Reyes, a member of the Criminal Investigation Command (CIC) of the PNP and
who was one of the officers assigned to conduct an investigation of the May 18, 1995 incident, made a public
disclosure of his findings that there was no shootout and the eleven suspected members of the Kuratong
Baleleng gang were instead summarily executed. SPO2 Corazon dela Cruz, also a member of the CIC, made
the same statement corroborating the claim of SPO2 delos Reyes.

Indeed, prayers a) and b) above had been rendered moot and academic by reason of the release of SPO2
delos Reyes and SPO2 dela Cruz from the coverage of the Program. However, we find it necessary to resolve
the merits of the principal issue raised for a proper disposition of prayer c) and for future guidance of both
bench and bar as to the application of Sections 3(d) and 4 of R.A. No. 6981. As we have ruled in Alunan III
vs. Mirasol,[3] and Viola vs. Alunan III,[4] "courts will decide a question otherwise moot and academic if it
is'capable of repetition, yet evading review.'"

The Senate conducted hearings to determine the circumstances surrounding the subject incident. SPO2
delos Reyes and SPO2 dela Cruz testified before the Senate hearings. On June 2, 1995, former Senator Raul
Roco, who was then the Chairman of the Senate Committee on Justice and Human Rights, recommended that
SPO2 delos Reyes and SPO2 dela Cruz be admitted to the government's Witness Protection, Security and
Benefit Program. Accordingly, SPO2 delos Reyes and SPO2 dela Cruz were admitted into the said Program.

Petitioners' main contention is that Section 3 of R.A. No. 6981 lays down the basic qualifications a
person must possess in order to be admitted into the Program and that Section 4 of the same statute is not an
exception to Section 3 but, it simply adds requirements for witnesses before they may become eligible for
admission into the Program in case of legislative investigations.

On March 12, 1996, herein petitioners, in their capacity as taxpayers, but who are among the PNP
officers implicated in the alleged rubout, filed before the court a quo a petition for injunction with prayer for
temporary restraining order questioning the legality of the admission of SPO2 delos Reyes and SPO2 dela
Cruz into the Program. Petitioners contend that under Section 3(d) of R.A. No. 6981, law enforcement officers,
like SPO2 delos Reyes and SPO2 dela Cruz, are disqualified from being admitted into the witness protection
program even though they may be testifying against other law enforcement officers.

We do not agree.
Section 3(d) provides:
Sec. 3. Admission into the Program. - Any person who has witnessed or has knowledge or information on the
commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial
body, or before any investigating authority, may be admitted into the Program: Provided, That:

On July 30, 1998, the trial court rendered the herein assailed decision.
xxx
Hence, the petition anchored on a sole assignment of error, to wit:
"THE COURT A QUO ERRED IN RULING THAT RESPONDENTS SPO2 EDUARDO DELOS REYES
AND SPO2 CORAZON DELA CRUZ ARE QUALIFIED TO BE ADMITTED INTO THE WITNESS
PROTECTION PROGRAM DESPITE THEIR CLEAR DISQUALIFICATION FROM THE PROGRAM
UNDER SECTION 3(D) OF REPUBLIC ACT NO. 6981, OTHERWISE KNOWN AS THE 'WITNESS
PROTECTION, SECURITY AND BENEFIT ACT'."
Petitioners pray that the decision of the RTC be reversed and set aside and instead "a) An Injunction be issued enjoining the Department of Justice from continuing to provide the benefits
accruing under the Witness Protection Program to respondents SPO2 delos Reyes and SPO2 dela Cruz;
"b) Order the immediate discharge of respondents SPO2 delos Reyes and SPO2 dela Cruz from WPP and for
the latter to be ordered to cease and desist from accepting the benefits of the WPP; and
"c) Order respondents SPO2 delos Reyes and SPO2 dela Cruz to return whatever monetary benefits they have
received from the government as a consequence of their wrongful and illegal admission into the WPP." [1]

(d) he is not a law enforcement officer, even if he would be testifying against the other law
enforcement officers. In such a case, only the immediate members of his family may
avail themselves of the protection provided for under this Act.
Section 4 provides:
Sec. 4. Witness in Legislative Investigations. - In case of legislative investigations in aid of legislation, a
witness, with his express consent, may be admitted into the Program upon the recommendation of the
legislative committee where his testimony is needed when in its judgment there is pressing necessity
therefor: Provided, That such recommendation is approved by the President of the Senate or the Speaker of the
House of Representatives, as the case may be.
A careful reading of Sections 3 and 4 readily shows that these are distinct and independent provisions. It
is true that the proviso in Section 3(d) disqualifies law enforcement officers from being admitted into the
Program when they "testify before any judicial or quasi-judicial body, or before any investigating
authority." This is the general rule. However, Section 4 provides for a specific and separate situation where a
witness testifies before a legislative investigation. An investigation by a legislative committee does not fall

138

under the category of "any investigating authority" referred to in Section 3. Section 4 contains only a proviso
that the witness' admission to the Program must be recommended by the legislative committee when in its
judgment there is a pressing necessity therefor and said recommendation is approved by the President of the
Senate or the Speaker of the House of Representatives, as the case may be. Section 4 does not contain any
proviso similar to Sec. 3(d) as quoted above, nor does Section 4 refer to the application of the proviso under
Section 3. In other words, Section 4 did not make any qualification or distinction.
It is basic under the law on statutory construction that where the law does not distinguish, courts should
not distinguish.[5] The operation of a proviso is usually and properly confined to the clause or distinct portion
of the enactment which immediately precedes it or to which it pertains, and does not extend to or qualify other
sections or portions of the statute, unless the legislative intent that it shall so operate is clearly disclosed. [6]
In the present case, it is clear that the legislative intent that the proviso under Section 3(d) of R.A. No.
6981 does not apply to Section 4. The trial court did not err in concluding that if the framers of the law
intended otherwise, they could have easily placed the same proviso of Section 3(d) or referred to it under
Section 4. Hence, in the absence of a clear proviso or reference to Section 3(d), a witness in a legislative
investigation whether or not he is a law enforcement officer, may be admitted into the Program subject only to
the requirements provided for under Section 4. It is not disputed that the Senate Committee on Justice and
Human Rights, chaired by then Senator Raul Roco, had recommended the admission of SPO2 delos Reyes and
dela Cruz into the Program and was duly indorsed by then Senate President Edgardo J. Angara.

SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely, SAMSON S. ALCANTARA, ED


VINCENT S. ALBANO, RENE B. GOROSPE, EDWIN R. SANDOVAL and RODOLFO D.
MAPILE, petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G. ROMULO, HON.
SECRETARY OF JUSTICE SIMEON DATUMANONG, HON. SECRETARY OF
NATIONAL DEFENSE ANGELO REYES, and HON. SECRETARY JOSE LINA,
JR., respondents.

[G.R. No. 159185. February 3, 2004]

REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO L. LOBREGAT, REP.
HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B. MITRA, REP. EMMYLOU J. TALINOSANTOS, and REP. GEORGILU R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT
GLORIA MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO G.
ROMULO, respondents.

WHEREFORE, we DENY DUE COURSE to the petition and AFFIRM the assailed decision.
SO ORDERED.
[G.R. No. 159196. February 3, 2004]

SANLAKAS VS EXECUTIVE SECRETARY


EN BANC

AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner, vs. SECRETARY ALBERTO
ROMULO, AS EXECUTIVE SECRETARY; SECRETARY ANGELO REYES, AS
SECRETARY OF NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF
STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al., respondents.
DECISION

[G.R. No. 159085. February 3, 2004]


TINGA, J.:
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG MANGGAGAWA, represented by
REP. RENATO MAGTUBO petitioners, vs. EXECUTIVE SECRETARY SECRETARY
ANGELO REYES, GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES
EBDANE, respondents.

[G.R. No. 159103. February 3, 2004]

They came in the middle of the night. Armed with high-powered ammunitions and explosives, some
three hundred junior officers and enlisted men of the Armed Forces of the Philippines (AFP) stormed into the
Oakwood Premiere apartments in Makati City in the wee hours of July 27, 2003. Bewailing the corruption in
the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense
and the Chief of the Philippine National Police (PNP).[1]
In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and
General Order No. 4, both declaring a state of rebellion and calling out the Armed Forces to suppress the
rebellion. Proclamation No. 427 reads in full:

139

PROCLAMATION NO. 427


DECLARING A STATE OF REBELLION

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted
and aided by known and unknown leaders, conspirators and plotters in the government service and outside the
government;

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;

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the
President, as the Commander-in-Chief of all Armed Forces of the Philippines, may call out such Armed Forces
to suppress the rebellion;

WHEREAS, these misguided elements of the Armed Forces of the Philippines are being supported, abetted
and aided by known and unknown leaders, conspirators and plotters in the government service and outside the
government;

I hereby direct the Chief of the Armed Forces of the Philippines and the Chief of the Philippine National Police
and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to
immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion
with due regard to constitutional rights.

WHEREAS, under Section 18, Article VII of the present Constitution, whenever it becomes necessary, the
President, as the Commander-in-Chief of the Armed Forces of the Philippines, may call out such Armed Forces
to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law,
hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion.
In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the
Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to
immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard
to constitutional rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE PHILIPPINE NATIONAL POLICE
TO SUPPRESS 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 et seq. of the Revised Penal Code, as amended;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by the


Constitution as President of the Republic of the Philippines and Commander-in-Chief of all the armed forces
of the Philippines and pursuant to Proclamation No. 427 dated July 27, 2003, do hereby call upon the Armed
Forces of the Philippines and the Philippine National Police to suppress and quell the rebellion.

By the evening of July 27, 2003, the Oakwood occupation had ended. After hours-long negotiations, the
soldiers agreed to return to barracks. The President, however, did not immediately lift the declaration of a state
of rebellion and did so only on August 1, 2003, through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a state of rebellion was declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003, which was issued on the basis of
Proclamation No. 427 dated July 27, 2003, and pursuant to Article VII, Section 18 of the Constitution, the
Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the
rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine National Police have effectively
suppressed and quelled the rebellion.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the
powers vested in me by law, hereby declare that the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court challenging the validity of Proclamation
No. 427 and General Order No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),[2] party-list organizations Sanlakas
and Partido ng Manggagawa (PM), contend that Section 18, Article VII of the Constitution does not require the
declaration of a state of rebellion to call out the armed forces. [3] They further submit that, because of the
cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the
President of a state of rebellion for an indefinite period. [4]

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Petitioners in G.R. No. 159103 (SJS Officers/Members v. Hon. Executive Secretary, et al.) are
officers/members of the Social Justice Society (SJS), Filipino citizens, taxpayers, law professors and bar
reviewers.[5] Like Sanlakas and PM, they claim that Section 18, Article VII of the Constitution does not
authorize the declaration of a state of rebellion. [6] They contend that the declaration is a constitutional anomaly
that confuses, confounds and misleads because [o]verzealous public officers, acting pursuant to such
proclamation or general order, are liable to violate the constitutional right of private citizens. [7] Petitioners also
submit that the proclamation is a circumvention of the report requirement under the same Section 18, Article
VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of
martial law.[8] Finally, they contend that the presidential issuances cannot be construed as an exercise of
emergency powers as Congress has not delegated any such power to the President.[9]
In G.R. No. 159185 (Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary
Romulo), petitioners brought suit as citizens and as Members of the House of Representatives whose rights,
powers and functions were allegedly affected by the declaration of a state of rebellion. [10] Petitioners do not
challenge the power of the President to call out the Armed Forces. [11] They argue, however, that the declaration
of a state of rebellion is a superfluity, and is actually an exercise of emergency powers. [12] Such exercise, it is
contended, amounts to a usurpation of the power of Congress granted by Section 23 (2), Article VI of the
Constitution.[13]
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator assails the subject presidential
issuances as an unwarranted, illegal and abusive exercise of a martial law power that has no basis under the
Constitution.[14] In the main, petitioner fears that the declaration of a state of rebellion opens the door to the
unconstitutional implementation of warrantless arrests for the crime of rebellion. [15]
Required to comment, the Solicitor General argues that the petitions have been rendered moot by the
lifting of the declaration.[16] In addition, the Solicitor General questions the standing of the petitioners to bring
suit.[17]
The Court agrees with the Solicitor General that the issuance of Proclamation No. 435, declaring that
the state of rebellion has ceased to exist, has rendered the case moot. As a rule, courts do not adjudicate moot
cases, judicial power being limited to the determination ofactual controversies.[18] Nevertheless, courts will
decide a question, otherwise moot, if it is capable of repetition yet evading review. [19] The case at bar is one
such case.
Once before, the President on May 1, 2001 declared a state of rebellion and called upon the AFP and the
PNP to suppress the rebellion through Proclamation No. 38 and General Order No. 1. On that occasion, an
angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly
weapons assaulted and attempted to break into Malacaang. [20] Petitions were filed before this Court assailing
the validity of the Presidents declaration. Five days after such declaration, however, the President lifted the
same. The mootness of the petitions in Lacson v. Perez and accompanying cases[21] precluded this Court from
addressing the constitutionality of the declaration.
To prevent similar questions from reemerging, we seize this opportunity to finally lay to rest the validity
of the declaration of a state of rebellion in the exercise of the Presidents calling out power, the mootness of the
petitions notwithstanding.

Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of Congress, have standing to
challenge the subject issuances. InPhilippine Constitution Association v. Enriquez, [22] this Court recognized
that:
To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress
can have a resort to the courts.
Petitioner Members of Congress claim that the declaration of a state of rebellion by the President is tantamount
to an exercise of Congress emergency powers, thus impairing the lawmakers legislative powers. Petitioners
also maintain that the declaration is a subterfuge to avoid congressional scrutiny into the Presidents exercise of
martial law powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no legal standing or locus standi to bring
suit. 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. 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.[23]
Petitioners Sanlakas and PM assert that:
2. As a basic principle of the organizations and as an important plank in their programs, petitioners are
committed to assert, defend, protect, uphold, and promote the rights, interests, and welfare of the people,
especially the poor and marginalized classes and sectors of Philippine society. Petitioners are committed to
defend and assert human rights, including political and civil rights, of the citizens.
3. Members of the petitioner organizations resort to mass actions and mobilizations in the exercise of their
Constitutional rights to peaceably assemble and their freedom of speech and of expression under Section 4,
Article III of the 1987 Constitution, as a vehicle to publicly ventilate their grievances and legitimate demands
and to mobilize public opinion to support the same.[24] [Emphasis in the original.]
Petitioner party-list organizations claim no better right than the Laban ng Demokratikong Pilipino,
whose standing this Court rejected inLacson v. Perez:
petitioner has not demonstrated any injury to itself which would justify the resort to the Court. Petitioner is a
juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it
alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for
the crime of rebellion. Every action must be brought in the name of the party whose legal rights has been
invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.

141

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that it[]s
right to freedom of expression and freedom of assembly is affected by the declaration of a state of rebellion
and that said proclamation is invalid for being contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not
having jurisdiction in the first instance over such a petition. Section 5 [1], Article VIII of the Constitution
limits the original jurisdiction of the court to cases affecting ambassadors, other public ministers and consuls,
and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.[25]

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.

Even assuming that petitioners are peoples organizations, this status would not vest them with the
requisite personality to question the validity of the presidential issuances, as this Court made clear
in Kilosbayan v. Morato: [26]

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the
factual basis for 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 provides that the State shall respect the role of independent peoples organizations to enable
the people to pursue and protect, within the democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means, that their right to effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be abridged. (Art. XIII, 15-16)

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the
civil courts or legislative assemblies, nor authorize the conferment of the jurisdiction on military courts and
agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the
writ.

These provisions have not changed the traditional rule that only real parties in interest or those with standing,
as the case may be, may invoke the judicial power. The jurisdiction of this Court, even in cases involving
constitutional questions, is limited by the case and controversy requirement of Art. VIII, 5.This requirement
lies at the very heart of the judicial function. It is what differentiates decisionmaking in the courts from
decisionmaking in the political departments of the government and bars the bringing of suits by just any party.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

[27]

That petitioner SJS officers/members are taxpayers and citizens does not necessarily endow them with
standing. A taxpayer may bring suit where the act complained of directly involves the illegal disbursement of
public funds derived from taxation.[28] No such illegal disbursement is alleged.
On the other hand, a citizen will be allowed to raise a constitutional question only when he can show
that he has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of
the government; the injury is fairly traceable to the challenged action; and the injury is likely to be redressed
by a favorable action.[29] Again, no such injury is alleged in this case.
Even granting these petitioners have standing on the ground that the issues they raise are of
transcendental importance, the petitions must fail.
It is true that for the purpose of exercising the calling out power the Constitution does not require the
President to make a declaration of a state of rebellion. Section 18, Article VII provides:
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 writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a sequence of graduated power[s].
From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the
writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the
Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that
public safety requires the exercise of such power.[31] However, as we observed in Integrated Bar of the
Philippines v. Zamora,[32] [t]hese conditions are not required in the exercise of the calling out power. The only
criterion is that whenever it becomes necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion.
[30]

Nevertheless, it is equally true that Section 18, Article VII does not expressly prohibit the President
from declaring a state of rebellion.Note that the Constitution vests the President not only with Commander-inChief powers but, first and foremost, with Executive powers.
Section 1, Article VII of the 1987 Philippine Constitution states: The executive power shall be vested in
the President. As if by exposition, Section 17 of the same Article provides: He shall ensure that the laws be
faithfully executed. The provisions trace their history to the Constitution of the United States.
The specific provisions of the U.S. Constitution granting the U.S. President executive and commanderin-chief powers have remained in their original simple form since the Philadelphia Constitution of 1776,
Article II of which states in part:

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Section 1. 1. The Executive Power shall be vested in a President of the United States of America . . . .
....
Section 2. 1. The President shall be Commander in Chief of the Army and Navy of the United States. . . .
....
Section 3. he shall take care that the laws be faithfully executed. [Article II Executive Power]
Recalling in historical vignettes the use by the U.S. President of the above-quoted provisions, as
juxtaposed against the corresponding action of the U.S. Supreme Court, is instructive. Clad with the
prerogatives of the office and endowed with sovereign powers, which are drawn chiefly from the Executive
Power and Commander-in-Chief provisions, as well as the presidential oath of office, the President serves as
Chief of State or Chief of Government, Commander-in-Chief, Chief of Foreign Relations and Chief of Public
Opinion.[33]
First to find definitive new piers for the authority of the Chief of State, as the protector of the people,
was President Andrew Jackson.Coming to office by virtue of a political revolution, Jackson, as President not
only kept faith with the people by driving the patricians from power. Old Hickory, as he was fondly called, was
the first President to champion the indissolubility of the Union by defeating South Carolinas nullification
effort.[34]
The Federal Tariff Acts of 1828 and 1832 that Congress enacted did not pacify the hotspurs from South
Carolina. Its State Legislature ordered an election for a convention, whose members quickly passed an
Ordinance of Nullification. The Ordinance declared the Tariff Acts unconstitutional, prohibited South Carolina
citizens from obeying them after a certain date in 1833, and threatened secession if the Federal Government
sought to oppose the tariff laws. The Legislature then implemented the Ordinance with bristling punitive laws
aimed at any who sought to pay or collect customs duties.[35]
Jackson bided his time. His task of enforcement would not be easy. Technically, the President might
send troops into a State only if the Governor called for help to suppress an insurrection, which would not occur
in the instance. The President could also send troops to see to it that the laws enacted by Congress were
faithfully executed. But these laws were aimed at individual citizens, and provided no enforcement machinery
against violation by a State. Jackson prepared to ask Congress for a force bill.[36]
In a letter to a friend, the President gave the essence of his position. He wrote: . . . when a faction in a
State attempts to nullify a constitutional law of Congress, or to destroy the Union, the balance of the people
composing this Union have a perfect right to coerce them to obedience. Then in a Proclamation he issued on
December 10, 1832, he called upon South Carolinians to realize that there could be no peaceable interference
with the execution of the laws, and dared them, disunion by armed force is treason. Are you ready to incur its
guilt?[37]

The Proclamation frightened nullifiers, non-nullifiers and tight-rope walkers. Soon, State Legislatures
began to adopt resolutions of agreement, and the President announced that the national voice from Maine on
the north to Louisiana on the south had declared nullification and accession confined to contempt and infamy.
[38]

No other President entered office faced with problems so formidable, and enfeebled by personal and
political handicaps so daunting, as Abraham Lincoln.
Lincoln believed the Presidents power broad and that of Congress explicit and restricted, and sought
some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the Presidents
designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision and
joined them as the war power which authorized him to do many things beyond the competence of Congress. [39]
Lincoln embraced the Jackson concept of the Presidents independent power and duty under his oath
directly to represent and protect the people. In his Message of July 4, 1861, Lincoln declared that the
Executive found the duty of employing the war power in defense of the government forced upon him. He
could not but perform the duty or surrender the existence of the Government . . . . This concept began as a
transition device, to be validated by Congress when it assembled. In less than two-years, it grew into an
independent power under which he felt authorized to suspend the privilege of the writ of habeas corpus, issue
the Emancipation Proclamation, and restore reoccupied States.[40]
Lincolns Proclamation of April 15, 1861, called for 75,000 troops. Their first service, according to the
proclamation, would be to recapture forts, places and property, taking care to avoid any devastation, any
destruction of or interference with property, or any disturbance of peaceful citizens. [41]
Early in 1863, the U.S. Supreme Court approved President Lincolns report to use the war powers
without the benefit of Congress. The decision was handed in the celebrated Prize Cases[42] which involved suits
attacking the Presidents right to legally institute a blockade.Although his Proclamation was subsequently
validated by Congress, the claimants contended that under international law, a blockade could be instituted
only as a measure of war under the sovereign power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could impose a blockade and all prizes seized
before the legislative declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld Lincolns right to act
as he had.[43]
In the course of time, the U.S. Presidents power to call out armed forces and suspend the privilege of the
writ of habeas corpus without prior legislative approval, in case of invasion, insurrection, or rebellion came to
be recognized and accepted. The United States introduced the expanded presidential powers in the Philippines
through the Philippine Bill of 1902.[44] The use of the power was put to judicial test and this Court held that the
case raised a political question and said that it is beyond its province to inquire into the exercise of the power.
[45]
Later, the grant of the power was incorporated in the 1935 Constitution.[46]
Elected in 1884, Grover Cleveland took his ascent to the presidency to mean that it made him the trustee
of all the people. Guided by the maxim that Public office is a public trust, which he practiced during his
incumbency, Cleveland sent federal troops to Illinois to quell striking railway workers who defied a court
injunction. The injunction banned all picketing and distribution of handbills. For leading the strikes and
violating the injunction, Debs, who was the union president, was convicted of contempt of court. Brought to

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the Supreme Court, the principal issue was by what authority of the Constitution or statute had the President to
send troops without the request of the Governor of the State.[47]
In In Re: Eugene Debs, et al,[48] the Supreme Court upheld the contempt conviction. It ruled that it is not
the governments province to mix in merely individual present controversies. Still, so it went on, whenever
wrongs complained of are such as affect the public at large, and are in respect of matters which by the
Constitution are entrusted to the care of the Nation and concerning which the Nation owes the duty to all
citizens of securing to them their common rights, then the mere fact that the Government has no pecuniary
interest in the controversy is not sufficient to exclude it from the Courts, or prevent it from taking measures
therein to fully discharge those constitutional duties.[49] Thus, Clevelands course had the Courts attest.
Taking off from President Cleveland, President Theodore Roosevelt launched what political scientists
dub the stewardship theory. Calling himself the steward of the people, he felt that the executive power was
limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by
Congress under its constitutional powers.[50]
The most far-reaching extension of presidential power T.R. ever undertook to employ was his plan to
occupy and operate Pennsylvanias coal mines under his authority as Commander-in-Chief. In the issue, he
found means other than force to end the 1902 hard-coal strike, but he had made detailed plans to use his power
as Commander-in-Chief to wrest the mines from the stubborn operators, so that coal production would begin
again.[51]
Eventually, the power of the State to intervene in and even take over the operation of vital utilities in the
public interest was accepted. In the Philippines, this led to the incorporation of Section 6, [52] Article XIII of the
1935 Constitution, which was later carried over with modifications in Section 7, [53] Article XIV of the 1973
Constitution, and thereafter in Section 18,[54] Article XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are
broad enough as it is and become more so when taken together with the provision on executive power and the
presidential oath of office. Thus, the plenitude of the powers of the presidency equips the occupant with the
means to address exigencies or threats which undermine the very existence of government or the integrity of
the State.
In The Philippine Presidency A Study of Executive Power, the late Mme. Justice Irene R. Cortes,
proposed that the Philippine President was vested with residual power and that this is even greater than that of
the U.S. President. She attributed this distinction to the unitary and highly centralized nature of the Philippine
government. She noted that, There is no counterpart of the several states of the American union which have
reserved powers under the United States constitution. Elaborating on the constitutional basis for her argument,
she wrote:
. The [1935] Philippine [C]onstitution establishes the three departments of the government in this manner: The
legislative power shall be vested in a Congress of the Philippines which shall consist of a Senate and a House
of Representatives. The executive power shall be vested in a President of the Philippines. The judicial powers
shall be vested in one Supreme Court and in such inferior courts as may be provided by law. These provisions
not only establish a separation of powers by actual division but also confer plenary legislative, executive, and
judicial powers. For as the Supreme Court of the Philippines pointed out in Ocampo v. Cabangis, a grant of

legislative power means a grant of all the legislative power; and a grant of the judicial power means a grant of
all the judicial power which may be exercised under the government. If this is true of the legislative power
which is exercised by two chambers with a combined membership [at that time] of more than 120 and of the
judicial power which is vested in a hierarchy of courts, it can equally if not more appropriately apply to the
executive power which is vested in one official the president. He personifies the executive branch. There is a
unity in the executive branch absent from the two other branches of government. The president is not the chief
of many executives. He is the executive. His direction of the executive branch can be more immediate and
direct than the United States president because he is given by express provision of the constitution control over
all executive departments, bureaus and offices.[55]
The esteemed Justice conducted her study against the backdrop of the 1935 Constitution, the framers of
which, early on, arrived at a general opinion in favor of a strong Executive in the Philippines. [56] Since then,
reeling from the aftermath of martial law, our most recent Charter has restricted the Presidents powers as
Commander-in-Chief. The same, however, cannot be said of the Presidents powers as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the
Court, by a slim 8-7 margin, upheld the Presidents power to forbid the return of her exiled predecessor. The
rationale for the majoritys ruling rested on the Presidents
unstated residual powers which are implied from the grant of executive power and which are necessary for her
to comply with her duties under the Constitution. The powers of the President are not limited to what are
expressly enumerated in the article on the Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission
of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President, particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of executive power.[57] [Underscoring supplied. Italics in the
original.]
Thus, the Presidents authority to declare a state of rebellion springs in the main from her powers as
chief executive and, at the same time, draws strength from her Commander-in-Chief powers. Indeed, as the
Solicitor General accurately points out, statutory authority for such a declaration may be found in Section 4,
Chapter 2 (Ordinance Power), Book III (Office of the President) of the Revised Administrative Code of 1987,
which states:
SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment
or interest, upon the existence of which the operation of a specific law or regulation is made to depend,
shall be promulgated in proclamations which shall have the force of an executive order. [Emphasis supplied.]
The foregoing discussion notwithstanding, in calling out the armed forces, a declaration of a state of
rebellion is an utter superfluity.[58]At most, it only gives notice to the nation that such a state exists and that the
armed forces may be called to prevent or suppress it. [59]Perhaps the declaration may wreak emotional effects
upon the perceived enemies of the State, even on the entire nation. But this Courts mandate is to probe only
into the legal consequences of the declaration. This Court finds that such a declaration is devoid of any legal
significance. For all legal intents, the declaration is deemed not written.

144

Should there be any confusion generated by the issuance of Proclamation No. 427 and General Order
No. 4, we clarify that, as the dissenters in Lacson correctly pointed out, the mere declaration of a state of
rebellion cannot diminish or violate constitutionally protected rights. [60] Indeed, if a state of martial law does
not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas
corpus,[61] then it is with more reason that a simple declaration of a state of rebellion could not bring about
these conditions.[62] At any rate, the presidential issuances themselves call for the suppression of the rebellion
with due regard to constitutional rights.
For the same reasons, apprehensions that the military and police authorities may resort to warrantless
arrests are likewise unfounded.In Lacson vs. Perez, supra, majority of the Court held that [i]n quelling or
suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the Rules of Court, [63] if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on the declaration of a state of rebellion. [64] In other
words, a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President
has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present.

WHEREFORE, the petitions are hereby DISMISSED.


SO ORDERED.

PIMENTEL VS ERMITA
http://sc.judiciary.gov.ph/jurisprudence/2005/oct2005/164978.htm

JOYA VS PCGG
Republic of the Philippines
SUPREME COURT
Manila

It is not disputed that the President has full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power. While the Court may examine whether the power was
exercised within constitutional limits or in a manner constituting grave abuse of discretion, none of the
petitioners here have, by way of proof, supported their assertion that the President acted without factual basis.
[65]

The argument that the declaration of a state of rebellion amounts to a declaration of martial law and,
therefore, is a circumvention of the report requirement, is a leap of logic. There is no indication that military
tribunals have replaced civil courts in the theater of war or that military authorities have taken over the
functions of civil government. There is no allegation of curtailment of civil or political rights. There is no
indication that the President has exercised judicial and legislative powers. In short, there is no illustration that
the President has attempted to exercise or has exercised martial law powers.
Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency
powers, which exercise depends upon a grant of Congress pursuant to Section 23 (2), Article VI of the
Constitution:
Sec. 23. (1) .
(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a
limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to
carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
The petitions do not cite a specific instance where the President has attempted to or has exercised
powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state
of rebellion and in calling out the armed forces, was merely exercising a wedding of her Chief Executive and
Commander-in-Chief powers. These are purely executive powers, vested on the President by Sections 1 and
18, Article VII, as opposed to the delegated legislative powers contemplated by Section 23 (2), Article VI.

EN BANC
G.R. No. 96541 August 24, 1993
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA SIGUION REYNA, PROF.
RICARTE M. PURUGANAN, IRMA POTENCIANO, ADRIAN CRISTOBAL, INGRID
SANTAMARIA, CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO R. JACELA,
JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ, LUCRECIA R. URTULA, SUSANO
GONZALES, STEVE SANTOS, EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA
POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO ALMARIO, LIWAYWAY A.
ARCEO, CHARITO PLANAS, HELENA BENITEZ, ANNA MARIA L. HARPER, ROSALINDA
OROSA, SUSAN CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON NAVARRO, MANDY
NAVASERO, ROMEO SALVADOR, JOSEPHINE DARANG, and PAZ VETO PLANAS, petitioners,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO MACARAIG,
JR., in his official capacity, and/or the Executive Secretary, and CHAIRMAN MATEO A.T.
CAPARAS, respondents.
M.M. Lazaro & Associates for petitioners.
The Solicitor General for respondents.

BELLOSILLO, J.:
All thirty-five (35) petitioners in this Special Civil Action for Prohibition and Mandamus with Prayer for
Preliminary Injunction and/or Restraining Order seek to enjoin the Presidential Commission on Good

145

Government (PCGG) from proceeding with the auction sale scheduled on 11 January 1991 by Christie's of
New York of the Old Masters Paintings and 18th and 19th century silverware seized from Malacaang and the
Metropolitan Museum of Manila and placed in the custody of the Central Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then Chairman of PCGG, wrote then President
Corazon C. Aquino, requesting her for authority to sign the proposed Consignment Agreement between the
Republic of the Philippines through PCGG and Christie, Manson and Woods International, Inc. (Christie's of
New York, or CHRISTIE'S) concerning the scheduled sale on 11 January 1991 of eighty-two (82) Old Masters
Paintings and antique silverware seized from Malacaang and the Metropolitan Museum of Manila alleged to
be part of the ill-gotten wealth of the late President Marcos, his relatives and cronies.
On 14 August 1990, then President Aquino, through former Executive Secretary Catalino Macaraig, Jr.,
authorized Chairman Caparas to sign the Consignment Agreement allowing Christie's of New York to auction
off the subject art pieces for and in behalf of the Republic of the Philippines.
On 15 August 1990, PCGG, through Chairman Caparas, representing the Government of the Republic of the
Philippines, signed the Consignment Agreement with Christie's of New York. According to the agreement,
PCGG shall consign to CHRISTIE'S for sale at public auction the eighty-two (82) Old Masters Paintings then
found at the Metropolitan Museum of Manila as well as the silverware contained in seventy-one (71) cartons in
the custody of the Central Bank of the Philippines, and such other property as may subsequently be identified
by PCGG and accepted by CHRISTIE'S to be subject to the provisions of the agreement. 1
On 26 October 1990, the Commission on Audit (COA) through then Chairman Eufemio C. Domingo
submitted to President Aquino the audit findings and observations of COA on the Consignment Agreement of
15 August 1990 to the effect that: (a) the authority of former PCGG Chairman Caparas to enter into the
Consignment Agreement was of doubtful legality; (b) the contract was highly disadvantageous to the
government; (c) PCGG had a poor track record in asset disposal by auction in the U.S.; and, (d) the assets
subject of auction were historical relics and had cultural significance, hence, their disposal was prohibited by
law. 2
On 15 November 1990, PCGG through its new Chairman David M. Castro, wrote President Aquino defending
the Consignment Agreement and refuting the allegations of COA Chairman Domingo. 3 On the same date,
Director of National Museum Gabriel S. Casal issued a certification that the items subject of the Consignment
Agreement did not fall within the classification of protected cultural properties and did not specifically qualify
as part of the Filipino cultural heritage.4 Hence, this petition originally filed on 7 January 1991 by Dean Jose
Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna, Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian
Cristobal, Ingrid Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R. Jacela, Jr., Mauro
Malang, Federico Aguilar Alcuaz, Lucrecia R. Urtula, Susano Gonzales, Steve Santos, Ephraim Samson, Soler
Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David Perez, Virgilio Almario and Liwayway
A. Arceo.
After the oral arguments of the parties on 9 January 1991, we issued immediately our resolution denying the
application for preliminary injunction to restrain the scheduled sale of the artworks on the ground that
petitioners had not presented a clear legal right to a restraining order and that proper parties had not been
impleaded.

On 11 January 1991, the sale at public auction proceeded as scheduled and the proceeds of $13,302,604.86
were turned over to the Bureau of Treasury. 5
On 5 February 1991, on motion of petitioners, the following were joined as additional petitioners: Charito
Planas, Helena Benitez, Ana Maria L. Harper, Rosalinda Orosa, Susan Carlo Medina, Patricia Ruiz, Bonnie
Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador, Josephine Darang and Paz Veto Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former Executive Secretary, the incumbent
Executive Secretary, and Chairman Mateo A.T. Caparas were impleaded as additional respondents.
Petitioners raise the following issues: (a) whether petitioners have legal standing to file the instant petition; (b)
whether the Old Masters Paintings and antique silverware are embraced in the phrase "cultural treasure of the
nation" which is under the protection of the state pursuant to the 1987 Constitution and/or "cultural properties"
contemplated under R.A. 4846, otherwise known as "The Cultural Properties Preservation and Protection Act;"
(c) whether the paintings and silverware are properties of public dominion on which can be disposed of
through the joint concurrence of the President and Congress;
(d) whether respondent, PCGG has the jurisdiction and authority to enter into an agreement with Christie's of
New York for the sale of the artworks; (e) whether, PCGG has complied with the due process clause and other
statutory requirements for the exportation and sale of the subject items; and, (f) whether the petition has
become moot and academic, and if so, whether the above issues warrant resolution from this Court.
The issues being interrelated, they will be discussed jointly hereunder. However, before proceeding, we wish to
emphasize that we admire and commend petitioners' zealous concern to keep and preserve within the country
great works of art by well-known old masters. Indeed, the value of art cannot be gainsaid. For, by serving as a
creative medium through which man can express his innermost thoughts and unbridled emotions while, at the
same time, reflecting his deep-seated ideals, art has become a true expression of beauty, joy, and life itself.
Such artistic creations give us insights into the artists' cultural heritage the historic past of the nation and the
era to which they belong in their triumphant, glorious, as well as troubled and turbulent years. It must be for
this reason that the framers of the 1987 Constitution mandated in Art. XIV, Sec. 14, that is the solemn duty of
the state to "foster the preservation, enrichment, and dynamic evolution of a Filipino national culture based on
the principle of unity in diversity in a climate of free artistic and intellectual expression." And, in urging this
Court to grant their petition, petitioners invoke this policy of the state on the protection of the arts.
But, the altruistic and noble purpose of the petition notwithstanding, there is that basic legal question which
must first be resolved: whether the instant petition complies with the legal requisites for this Court to exercise
its power of judicial review over this case.
The rule is settled 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,
namely: that the question must be raised by the proper party; that there must be an actual case or controversy;
that the question must be raised at the earliest possible opportunity; and, that the decision on the constitutional
or legal question must be necessary to the determination of the case itself. 6 But the most important are the first
two (2) requisites.
On the first requisite, we have held that one having no right or interest to protect cannot invoke the jurisdiction
of the court as party-plaintiff in an

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action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court which provides that every action must be
prosecuted and defended in the name of the real party-in-interest, and that all persons having interest in the
subject of the action and in obtaining the relief demanded shall be joined as plaintiffs. The Court will exercise
its power of judicial review only if the case is brought before it by a party who has the legal standing to raise
the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The term "interest" is material interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. 8Moreover, the interest
of the party plaintiff must be personal and not one based on a desire to vindicate the constitutional right of
some third and related party. 9
There are certain instances however when this Court has allowed exceptions to the rule on legal standing, as
when a citizen brings a case for mandamus to procure the enforcement of a public duty for the fulfillment of a
public right recognized by the Constitution, 10 and when a taxpayer questions the validity of a governmental act
authorizing the disbursement of public funds. 11
Petitioners claim that as Filipino citizens, taxpayers and artists deeply concerned with the preservation and
protection of the country's artistic wealth, they have the legal personality to restrain respondents Executive
Secretary and PCGG from acting contrary to their public duty to conserve the artistic creations as mandated by
the 1987 Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture, and R.A. 4846 known as "The
Cultural Properties Preservation and Protection Act," governing the preservation and disposition of national
and important cultural properties. Petitioners also anchor their case on the premise that the paintings and
silverware are public properties collectively owned by them and by the people in general to view and enjoy as
great works of art. They allege that with the unauthorized act of PCGG in selling the art pieces, petitioners
have been deprived of their right to public property without due process of law in violation of the
Constitution. 12
Petitioners' arguments are devoid of merit. They lack basis in fact and in law. They themselves allege that the
paintings were donated by private persons from different parts of the world to the Metropolitan Museum of
Manila Foundation, which is a non-profit and non-stock corporations established to promote non-Philippine
arts. The foundation's chairman was former First Lady Imelda R. Marcos, while its president was Bienvenido
R. Tantoco. On this basis, the ownership of these paintings legally belongs to the foundation or corporation or
the members thereof, although the public has been given the opportunity to view and appreciate these paintings
when they were placed on exhibit.

Similarly, as alleged in the petition, the pieces of antique silverware were given to the Marcos couple as gifts
from friends and dignitaries from foreign countries on their silver wedding and anniversary, an occasion
personal to them. When the Marcos administration was toppled by the revolutionary government, these
paintings and silverware were taken from Malacaang and the Metropolitan Museum of Manila and transferred
to the Central Bank Museum. The confiscation of these properties by the Aquino administration however
should not be understood to mean that the ownership of these paintings has automatically passed on the
government without complying with constitutional and statutory requirements of due process and just
compensation. If these properties were already acquired by the government, any constitutional or statutory
defect in their acquisition and their subsequent disposition must be raised only by the proper parties the true
owners thereof whose authority to recover emanates from their proprietary rights which are protected by
statutes and the Constitution. Having failed to show that they are the legal owners of the artworks or that the
valued pieces have become publicly owned, petitioners do not possess any clear legal right whatsoever to
question their alleged unauthorized disposition.
Further, although this action is also one of mandamus filed by concerned citizens, it does not fulfill the criteria
for a mandamus suit. In Legaspi v. Civil Service Commission, 13 this Court laid down the rule that a writ of
mandamus may be issued to a citizen only when the public right to be enforced and the concomitant duty of
the state are unequivocably set forth in the Constitution. In the case at bar, petitioners are not after the
fulfillment of a positive duty required of respondent officials under the 1987 Constitution. What they seek is
the enjoining of an official act because it is constitutionally infirmed. Moreover, petitioners' claim for the
continued enjoyment and appreciation by the public of the artworks is at most a privilege and is unenforceable
as a constitutional right in this action for mandamus.
Neither can this petition be allowed as a taxpayer's suit. Not every action filed by a taxpayer can qualify to
challenge the legality of official acts done by the government. A taxpayer's suit can prosper only if the
governmental acts being questioned involve disbursement of public funds upon the theory that the expenditure
of public funds by an officer of the state for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds, which may be enjoined at the request of a taxpayer. 14 Obviously, petitioners are
not challenging any expenditure involving public funds but the disposition of what they allege to be public
properties. It is worthy to note that petitioners admit that the paintings and antique silverware were acquired
from private sources and not with public money.
Anent the second requisite of actual controversy, petitioners argue that this case should be resolved by this
Court as an exception to the rule on moot and academic cases; that although the sale of the paintings and silver
has long been consummated and the possibility of retrieving the treasure trove is nil, yet the novelty and
importance of the issues raised by the petition deserve this Court's attention. They submit that the resolution by
the Court of the issues in this case will establish future guiding principles and doctrines on the preservation of
the nation's priceless artistic and cultural possessions for the benefit of the public as a whole. 15
For a court to exercise its power of adjudication, there must be an actual case of controversy one which
involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial resolution; the
case must not be moot or academic or based on extra-legal or other similar considerations not cognizable by a
court of justice. 16 A case becomes moot and academic when its purpose has become stale, 17 such as the case
before us. Since the purpose of this petition for prohibition is to enjoin respondent public officials from
holding the auction sale of the artworks on a particular date 11 January 1991 which is long past, the
issues raised in the petition have become moot and academic.

147

At this point, however, we need to emphasize that this Court has the discretion to take cognizance of a suit
which does not satisfy the requirements of an actual case or legal standing when paramount public interest is
involved.18 We find however that there is no such justification in the petition at bar to warrant the relaxation of
the rule.
Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the policy of the state to preserve and protect
the important cultural properties and national cultural treasures of the nation and to safeguard their intrinsic
value. As to what kind of artistic and cultural properties are considered by the State as involving public interest
which should therefore be protected, the answer can be gleaned from reading of the reasons behind the
enactment of R.A. 4846:
WHEREAS, the National Museum has the difficult task, under existing laws and
regulations, of preserving and protecting the cultural properties of the nation;

We agree with the certification of the Director of the Museum. Under the law, it is the Director of the Museum
who is authorized to undertake the inventory, registration, designation or classification, with the aid of
competent experts, of important cultural properties and national cultural treasures. 21 Findings of administrative
officials and agencies who have acquired expertise because their jurisdiction is confined to specific matters are
generally accorded not only respect but at times even finality if such findings are supported by substantial
evidence and are controlling on the reviewing authorities because of their acknowledged expertise in the fields
of specialization to which they are assigned. 22
In view of the foregoing, this Court finds no compelling reason to grant the petition. Petitioners have failed to
show that respondents Executive Secretary and PCGG exercised their functions with grave abuse of discretion
or in excess of their jurisdiction.
WHEREFORE, for lack of merit, the petition for prohibition and mandamus is DISMISSED.

WHEREAS, inumerable sites all over the country have since been excavated
for cultural relics, which have passed on to private hands, representing priceless cultural
treasure that properly belongs to the Filipino people as their heritage;

SO ORDERED.

WHEREAS, it is perhaps impossible now to find an area in the Philippines, whether


government or private property, which has not been disturbed by commercially-minded
diggers and collectors, literally destroying part of our historic past;

http://sc.judiciary.gov.ph/jurisprudence/2003/may2003/155001.htm

WHEREAS, because of this the Philippines has been charged as incapable of preserving
and protecting her cultural legacies;

AGAN VS PIATCO

TANADA VS TUVERA
Republic of the Philippines
SUPREME COURT
Manila

WHEREAS, the commercialization of Philippine relics from the contact period, the
Neolithic Age, and the Paleolithic Age, has reached a point perilously placing beyond
reach of savants the study and reconstruction of Philippine prehistory; and
WHEREAS, it is believed that more stringent regulation on movement and a limited
form of registration of important cultural properties and of designated national cultural
treasures is necessary, and that regardless of the item, any cultural property exported or
sold locally must be registered with the National Museum to control the deplorable
situation regarding our national cultural properties and to implement the Cultural
Properties Law (emphasis supplied).
Clearly, the cultural properties of the nation which shall be under the protection of the state are classified as the
"important cultural properties" and the "national cultural treasures." "Important cultural properties" are cultural
properties which have been singled out from among the innumerable cultural properties as having exceptional
historical cultural significance to the Philippines but are not sufficiently outstanding to merit the classification
of national cultural treasures. 19 On the other hand, a "national cultural treasures" is a unique object found
locally, possessing outstanding historical, cultural, artistic and/or scientific value which is highly significant
and important to this country and nation. 20 This Court takes note of the certification issued by the Director of
the Museum that the Italian paintings and silverware subject of this petition do not constitute protected cultural
properties and are not among those listed in the Cultural Properties Register of the National Museum.

EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN
VENUS, in his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA
CRUZ, in his capacity as Director, Malacaang Records Office, and FLORENDO S. PABLO, in his
capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6, Article
IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and enforceable must be

148

published in the Official Gazette or otherwise effectively promulgated, petitioners seek a writ of mandamus to
compel respondent public officials to publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234,
265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406,
415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594,
599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030,
1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-289, 291,
293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370,
382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561,
576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726,
837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 16061609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 17371742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800, 18021804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 18391840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 20302044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568,
570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-786, 788852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.

publication of the presidential issuances in question 2 said petitioners are without the requisite legal personality
to institute this mandamus proceeding, they are not being "aggrieved parties" within the meaning of Section 3,
Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to Protect
the rights of the petitioner, and to pay the damages sustained by the petitioner by reason
of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right and its
object is to compel the performance of a public duty, they need not show any specific interest for their petition
to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, 3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the public at large," and "it is for the
public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people are regarded as the real party in interest
and the relator at whose instigation the proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient to show that he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party to
the mandamus proceedings brought to compel the Governor General to call a special election for the position
of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T.
Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that
the relator is a proper party to proceedings of this character when a public right is sought
to be enforced. If the general rule in America were otherwise, we think that it would not
be applicable to the case at bar for the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in mind the reason for the rule, because,
if under the particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'

g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground that
petitioners have no legal personality or standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected or prejudiced by the alleged non-

No reason exists in the case at bar for applying the general rule insisted upon by counsel
for the respondent. The circumstances which surround this case are different from those
in the United States, inasmuch as if the relator is not a proper party to these proceedings

149

no other person could be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned case
apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein is a public
right recognized by no less than the fundamental law of the land. If petitioners were not allowed to institute
this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering
that the Solicitor General, the government officer generally empowered to represent the people, has entered his
appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to the date they are to take effect,
publication in the Official Gazette is not indispensable for their effectivity. The point stressed is anchored on
Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a long line
of decisions, 4 this Court has ruled that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day following its publication-but not when the law
itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with the
fact of publication. Considered in the light of other statutes applicable to the issue at hand, the conclusion is
easily reached that said Article 2 does not preclude the requirement of publication in the Official Gazette, even
if the law itself provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638 provides as
follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme Court and the Court
of Appeals as may be deemed by said courts of sufficient importance to be so published;
[4] such documents or classes of documents as may be required so to be published by
law; and [5] such documents or classes of documents as the President of the Philippines
shall determine from time to time to have general applicability and legal effect, or which
he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the various laws
which are to regulate their actions and conduct as citizens. Without such notice and publication, there would be
no basis for the application of the maxim "ignorantia legis non excusat." It would be the height of injustice to
punish or otherwise burden a citizen for the transgression of a law of which he had no notice whatsoever, not
even a constructive one.

Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so vital
significance that at this time when the people have bestowed upon the President a power heretofore enjoyed
solely by the legislature. While the people are kept abreast by the mass media of the debates and deliberations
in the Batasan Pambansaand for the diligent ones, ready access to the legislative recordsno such publicity
accompanies the law-making process of the President. Thus, without publication, the people have no means of
knowing what presidential decrees have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official
Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty
must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be
given substance and reality. The law itself makes a list of what should be published in the Official Gazette.
Such listing, to our mind, leaves respondents with no discretion whatsoever as to what must be included or
excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated by
law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or class of persons such as administrative and
executive orders need not be published on the assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he
must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said in Peralta
vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand that
the Official Gazette as the official government repository promulgate and publish the
texts of all such decrees, orders and instructions so that the people may know where to
obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been published,
shall have no force and effect. Some members of the Court, quite apprehensive about the possible unsettling
effect this decision might have on acts done in reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the question as to whether the Court's declaration
of invalidity apply to P.D.s which had been enforced or implemented prior to their publication. The answer is
all too familiar. In similar situations in the past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree. Norton
v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect of a

150

determination of unconstitutionality must be taken with qualifications. The actual


existence of a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a
new judicial declaration. The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects-with respect to particular conduct, private and official.
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party under the
Moratorium Law, albeit said right had accrued in his favor before said law was declared unconstitutional by
this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the Official
Gazette is "an operative fact which may have consequences which cannot be justly ignored. The past cannot
always be erased by a new judicial declaration ... that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees sought
by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters nor the texts of
these PDs can be ascertained since no copies thereof are available. But whatever their subject matter may be, it
is undisputed that none of these unpublished PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons
affected thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from prosecuting
violations of criminal laws until the same shall have been published in the Official Gazette or in some other
publication, even though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no binding
force and effect.

G.R. No. 133250

July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,


vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of preliminary injunction and a temporary
restraining order. The petition seeks to compel the Public Estates Authority ("PEA" for brevity) to disclose all
facts on PEA's then on-going renegotiations with Amari Coastal Bay and Development Corporation
("AMARI" for brevity) to reclaim portions of Manila Bay. The petition further seeks to enjoin PEA from
signing a new agreement with AMARI involving such reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner of Public Highways, signed a contract
with the Construction and Development Corporation of the Philippines ("CDCP" for brevity) to reclaim certain
foreshore and offshore areas of Manila Bay. The contract also included the construction of Phases I and II of
the Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the works in consideration of fifty
percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1084 creating PEA.
PD No. 1084 tasked PEA "to reclaim land, including foreshore and submerged areas," and "to develop,
improve, acquire, x x x lease and sell any and all kinds of lands." 1 On the same date, then President Marcos
issued Presidential Decree No. 1085 transferring to PEA the "lands reclaimed in the foreshore and offshore of
the Manila Bay"2 under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a memorandum directing PEA to amend its contract
with CDCP, so that "[A]ll future works in MCCRRP x x x shall be funded and owned by PEA." Accordingly,
PEA and CDCP executed a Memorandum of Agreement dated December 29, 1981, which stated:
"(i) CDCP shall undertake all reclamation, construction, and such other works in the MCCRRP as
may be agreed upon by the parties, to be paid according to progress of works on a unit price/lump
sum basis for items of work to be agreed upon, subject to price escalation, retention and other terms
and conditions provided for in Presidential Decree No. 1594. All the financing required for such
works shall be provided by PEA.
xxx

SO ORDERED.
CHAVEZ VS PEA
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in
favor of PEA, all of the rights, title, interest and participation of CDCP in and to all the areas of
land reclaimed by CDCP in the MCCRRP as of December 30, 1981 which have not yet been sold,
transferred or otherwise disposed of by CDCP as of said date, which areas consist of approximately
Ninety-Nine Thousand Four Hundred Seventy Three (99,473) square meters in the Financial Center
Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty Two
Thousand Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed areas at varying
elevations above Mean Low Water Level located outside the Financial Center Area and the First
Neighborhood Unit."3

151

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and
transferring to PEA "the parcels of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation
Project (MCCRRP) containing a total area of one million nine hundred fifteen thousand eight hundred ninety
four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register of Deeds of the Municipality of
Paraaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering the
three reclaimed islands known as the "Freedom Islands" located at the southern portion of the Manila-Cavite
Coastal Road, Paraaque City. The Freedom Islands have a total land area of One Million Five Hundred
Seventy Eight Thousand Four Hundred and Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA" for brevity) with AMARI, a private
corporation, to develop the Freedom Islands. The JVA also required the reclamation of an additional 250
hectares of submerged areas surrounding these islands to complete the configuration in the Master
Development Plan of the Southern Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA
through negotiation without public bidding.4 On April 28, 1995, the Board of Directors of PEA, in its
Resolution No. 1245, confirmed the JVA.5On June 8, 1995, then President Fidel V. Ramos, through then
Executive Secretary Ruben Torres, approved the JVA. 6
On November 29, 1996, then Senate President Ernesto Maceda delivered a privilege speech in the Senate and
denounced the JVA as the "grandmother of all scams." As a result, the Senate Committee on Government
Corporations and Public Enterprises, and the Committee on Accountability of Public Officers and
Investigations, conducted a joint investigation. The Senate Committees reported the results of their
investigation in Senate Committee Report No. 560 dated September 16, 1997.7 Among the conclusions of their
report are: (1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA are lands of the public
domain which the government has not classified as alienable lands and therefore PEA cannot alienate these
lands; (2) the certificates of title covering the Freedom Islands are thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued Presidential Administrative Order No. 365
creating a Legal Task Force to conduct a study on the legality of the JVA in view of Senate Committee Report
No. 560. The members of the Legal Task Force were the Secretary of Justice, 8 the Chief Presidential Legal
Counsel,9 and the Government Corporate Counsel.10 The Legal Task Force upheld the legality of the JVA,
contrary to the conclusions reached by the Senate Committees.11

After several motions for extension of time,13 PEA and AMARI filed their Comments on October 19, 1998 and
June 25, 1998, respectively. Meanwhile, on December 28, 1998, petitioner filed an Omnibus Motion: (a) to
require PEA to submit the terms of the renegotiated PEA-AMARI contract; (b) for issuance of a temporary
restraining order; and (c) to set the case for hearing on oral argument. Petitioner filed a Reiterative Motion for
Issuance of a TRO dated May 26, 1999, which the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to the petition and required the parties to file
their respective memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint Venture Agreement ("Amended JVA," for
brevity). On May 28, 1999, the Office of the President under the administration of then President Joseph E.
Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the President, petitioner now prays that on
"constitutional and statutory grounds the renegotiated contract be declared null and void." 14
The Issues
The issues raised by petitioner, PEA15 and AMARI16 are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE PETITION ARE MOOT AND
ACADEMIC BECAUSE OF SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR FAILING TO OBSERVE THE
PRINCIPLE GOVERNING THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR NON-EXHAUSTION OF
ADMINISTRATIVE REMEDIES;

On April 4 and 5, 1998, the Philippine Daily Inquirer and Today published reports that there were on-going
renegotiations between PEA and AMARI under an order issued by then President Fidel V. Ramos. According
to these reports, PEA Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy Officer Sergio
Cruz composed the negotiating panel of PEA.

IV. WHETHER PETITIONER HAS LOCUS STANDI TO BRING THIS SUIT;

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition for Prohibition with Application for
the Issuance of a Temporary Restraining Order and Preliminary Injunction docketed as G.R. No. 132994
seeking to nullify the JVA. The Court dismissed the petition "for unwarranted disregard of judicial hierarchy,
without prejudice to the refiling of the case before the proper court."12

VI. WHETHER THE STIPULATIONS IN THE AMENDED JOINT VENTURE AGREEMENT


FOR THE TRANSFER TO AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO BE
RECLAIMED, VIOLATE THE 1987 CONSTITUTION; AND

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity) as a taxpayer, filed the instant Petition
for Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction and Temporary Restraining
Order. Petitioner contends the government stands to lose billions of pesos in the sale by PEA of the reclaimed
lands to AMARI. Petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA,
invoking Section 28, Article II, and Section 7, Article III, of the 1987 Constitution on the right of the people to
information on matters of public concern. Petitioner assails the sale to AMARI of lands of the public domain
as a blatant violation of Section 3, Article XII of the 1987 Constitution prohibiting the sale of alienable lands
of the public domain to private corporations. Finally, petitioner asserts that he seeks to enjoin the loss of
billions of pesos in properties of the State that are of public dominion.

V. WHETHER THE CONSTITUTIONAL RIGHT TO INFORMATION INCLUDES OFFICIAL


INFORMATION ON ON-GOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;

VII. WHETHER THE COURT IS THE PROPER FORUM FOR RAISING THE ISSUE OF
WHETHER THE AMENDED JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition are moot and academic because of
subsequent events.

152

The petition prays that PEA publicly disclose the "terms and conditions of the on-going negotiations for a new
agreement." The petition also prays that the Court enjoin PEA from "privately entering into, perfecting and/or
executing any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and academic because AMARI furnished petitioner on June
21, 1999 a copy of the signed Amended JVA containing the terms and conditions agreed upon in the
renegotiations. Thus, PEA has satisfied petitioner's prayer for a public disclosure of the renegotiations.
Likewise, petitioner's prayer to enjoin the signing of the Amended JVA is now moot because PEA and AMARI
have already signed the Amended JVA on March 30, 1999. Moreover, the Office of the President has approved
the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the constitutional issue by simply fast-tracking the
signing and approval of the Amended JVA before the Court could act on the issue. Presidential approval does
not resolve the constitutional issue or remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and its approval by the President cannot
operate to moot the petition and divest the Court of its jurisdiction. PEA and AMARI have still to implement
the Amended JVA. The prayer to enjoin the signing of the Amended JVA on constitutional grounds necessarily
includes preventing its implementation if in the meantime PEA and AMARI have signed one in violation of the
Constitution. Petitioner's principal basis in assailing the renegotiation of the JVA is its violation of Section 3,
Article XII of the Constitution, which prohibits the government from alienating lands of the public domain to
private corporations. If the Amended JVA indeed violates the Constitution, it is the duty of the Court to enjoin
its implementation, and if already implemented, to annul the effects of such unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one which seeks to transfer title and ownership
to 367.5 hectares of reclaimed lands and submerged areas of Manila Bay to a single private corporation. It
now becomes more compelling for the Court to resolve the issue to insure the government itself does not
violate a provision of the Constitution intended to safeguard the national patrimony. Supervening events,
whether intended or accidental, cannot prevent the Court from rendering a decision if there is a grave violation
of the Constitution. In the instant case, if the Amended JVA runs counter to the Constitution, the Court can still
prevent the transfer of title and ownership of alienable lands of the public domain in the name of AMARI.
Even in cases where supervening events had made the cases moot, the Court did not hesitate to resolve the
legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and the public. 17
Also, the instant petition is a case of first impression. All previous decisions of the Court involving Section 3,
Article XII of the 1987 Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural landssold to private corporations which acquired the lands from private
parties. The transferors of the private corporations claimed or could claim the right to judicial confirmation of
their imperfect titles19 under Title II of Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant
case, AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and submerged areas for nonagricultural purposes by purchase under PD No. 1084 (charter of PEA) and Title III of CA No. 141. Certain
undertakings by AMARI under the Amended JVA constitute the consideration for the purchase. Neither
AMARI nor PEA can claim judicial confirmation of their titles because the lands covered by the Amended JVA
are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open, continuous,
exclusive and notorious occupation of agricultural lands of the public domain for at least thirty years since
June 12, 1945 or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title
expired on December 31, 1987.20
Lastly, there is a need to resolve immediately the constitutional issue raised in this petition because of the
possible transfer at any time by PEA to AMARI of title and ownership to portions of the reclaimed lands.
Under the Amended JVA, PEA is obligated to transfer to AMARI the latter's seventy percent proportionate
share in the reclaimed areas as the reclamation progresses. The Amended JVA even allows AMARI to
mortgage at any time the entire reclaimed area to raise financing for the reclamation project.21

Second issue: whether the petition merits dismissal for failing to observe the principle governing the
hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by seeking relief directly from the Court. The
principle of hierarchy of courts applies generally to cases involving factual questions. As it is not a trier of
facts, the Court cannot entertain cases involving factual issues. The instant case, however, raises constitutional
issues of transcendental importance to the public.22 The Court can resolve this case without determining any
factual issue related to the case. Also, the instant case is a petition for mandamus which falls under the original
jurisdiction of the Court under Section 5, Article VIII of the Constitution. We resolve to exercise primary
jurisdiction over the instant case.
Third issue: whether the petition merits dismissal for non-exhaustion of administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling PEA to disclose publicly certain
information without first asking PEA the needed information. PEA claims petitioner's direct resort to the Court
violates the principle of exhaustion of administrative remedies. It also violates the rule that mandamus may
issue only if there is no other plain, speedy and adequate remedy in the ordinary course of law.
PEA distinguishes the instant case from Taada v. Tuvera23 where the Court granted the petition for mandamus
even if the petitioners there did not initially demand from the Office of the President the publication of the
presidential decrees. PEA points out that in Taada, the Executive Department had an affirmative
statutory duty under Article 2 of the Civil Code24 and Section 1 of Commonwealth Act No. 63825 to publish the
presidential decrees. There was, therefore, no need for the petitioners in Taada to make an initial demand
from the Office of the President. In the instant case, PEA claims it has no affirmative statutory duty to disclose
publicly information about its renegotiation of the JVA. Thus, PEA asserts that the Court must apply the
principle of exhaustion of administrative remedies to the instant case in view of the failure of petitioner here to
demand initially from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by PEA, a government corporation. Under
Section 79 of the Government Auditing Code,26 the disposition of government lands to private parties requires
public bidding. PEA was under a positive legal duty to disclose to the public the terms and conditions for the
sale of its lands. The law obligated PEA to make this public disclosure even without demand from petitioner
or from anyone. PEA failed to make this public disclosure because the original JVA, like the Amended JVA,
was the result of a negotiated contract, not of a public bidding. Considering that PEA had an affirmative
statutory duty to make the public disclosure, and was even in breach of this legal duty, petitioner had the right
to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle of exhaustion of administrative remedies
does not apply when the issue involved is a purely legal or constitutional question. 27 The principal issue in the
instant case is the capacity of AMARI to acquire lands held by PEA in view of the constitutional ban
prohibiting the alienation of lands of the public domain to private corporations. We rule that the principle of
exhaustion of administrative remedies does not apply in the instant case.
Fourth issue: whether petitioner has locus standi to bring this suit
PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional
right to information without a showing that PEA refused to perform an affirmative duty imposed on PEA by
the Constitution. PEA also claims that petitioner has not shown that he will suffer any concrete injury because
of the signing or implementation of the Amended JVA. Thus, there is no actual controversy requiring the
exercise of the power of judicial review.

153

The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply
with its constitutional duties. There are two constitutional issues involved here. First is the right of citizens to
information on matters of public concern. Second is the application of a constitutional provision intended to
insure the equitable distribution of alienable lands of the public domain among Filipino citizens. The thrust of
the first issue is to compel PEA to disclose publicly information on the sale of government lands worth billions
of pesos, information which the Constitution and statutory law mandate PEA to disclose. The thrust of the
second issue is to prevent PEA from alienating hundreds of hectares of alienable lands of the public domain in
violation of the Constitution, compelling PEA to comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to the public. In Chavez v. PCGG,28 the
Court upheld the right of a citizen to bring a taxpayer's suit on matters of transcendental importance to the
public, thus "Besides, petitioner emphasizes, the matter of recovering the ill-gotten wealth of the Marcoses is an
issue of 'transcendental importance to the public.' He asserts that ordinary taxpayers have a right to
initiate and prosecute actions questioning the validity of acts or orders of government agencies or
instrumentalities, if the issues raised are of 'paramount public interest,' and if they 'immediately
affect the social, economic and moral well being of the people.'
Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, such as in this case. He invokes several
decisions of this Court which have set aside the procedural matter of locus standi, when the subject
of the case involved public interest.

Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction
of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1)
the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar
should be allowed."
We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights to information and to the equitable diffusion of natural resources - matters of transcendental public importance,
the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes official information on on-going
negotiations before a final agreement.
Section 7, Article III of the Constitution explains the people's right to information on matters of public concern
in this manner:
"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." (Emphasis supplied)
The State policy of full transparency in all transactions involving public interest reinforces the people's right to
information on matters of public concern. This State policy is expressed in Section 28, Article II of the
Constitution, thus:

xxx
In Taada v. Tuvera, the Court asserted that when the issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties
in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the
execution of the laws, he need not show that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to enforce their right to be informed on matters
of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid and enforceable must be published in the
Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing,
the Court declared that the right they sought to be enforced 'is a public right recognized by no less
than the fundamental law of the land.'
Legaspi v. Civil Service Commission, while reiterating Taada, further declared that 'when a
mandamus proceeding involves the assertion of a public right, the requirement of personal interest
is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public'
which possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure of public funds may not have been
involved under the questioned contract for the development, management and operation of the
Manila International Container Terminal, 'public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved.' We concluded that, as a consequence, the
disclosure provision in the Constitution would constitute sufficient authority for upholding the
petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to information and access to
official records, documents and papers a right guaranteed under Section 7, Article III of the 1987

"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." (Emphasis
supplied)
These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations
of the government, as well as provide the people sufficient information to exercise effectively other
constitutional rights. These twin provisions are essential to the exercise of freedom of expression. If the
government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say,
even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are
also essential to hold public officials "at all times x x x accountable to the people," 29 for unless citizens have
the proper information, they cannot hold public officials accountable for anything. Armed with the right
information, citizens can participate in public discussions leading to the formulation of government policies
and their effective implementation. An informed citizenry is essential to the existence and proper functioning
of any democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30
"An essential element of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest of the State that the
channels for free political discussion be maintained to the end that the government may perceive
and be responsive to the people's will. 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."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information is limited
to "definite propositions of the government." PEA maintains the right does not include access to "intra-agency
or inter-agency recommendations or communications during the stage when common assertions are still in the
process of being formulated or are in the 'exploratory stage'."

154

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the closing
of the transaction. To support its contention, AMARI cites the following discussion in the 1986 Constitutional
Commission:
"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts,
agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover both
steps leading to a contract and already a consummated contract, Mr. Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the
transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.
Mr. Suarez: Thank you."32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before petitioner can invoke the right. Requiring
government officials to reveal their deliberations at the pre-decisional stage will degrade the quality of
decision-making in government agencies. Government officials will hesitate to express their real sentiments
during deliberations if there is immediate public dissemination of their discussions, putting them under all
kinds of pressure before they decide.
We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and
information the constitutional right to information requires PEA to release to the public. Before the
consummation of the contract, PEA must, on its own and without demand from anyone, disclose to the public
matters relating to the disposition of its property. These include the size, location, technical description and
nature of the property being disposed of, the terms and conditions of the disposition, the parties qualified to
bid, the minimum price and similar information. PEA must prepare all these data and disclose them to the
public at the start of the disposition process, long before the consummation of the contract, because the
Government Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can
demand from PEA this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding
or review committee is not immediately accessible under the right to information. While the evaluation or
review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals.
However, once the committee makes its official recommendation, there arises a "definite proposition" on the
part of the government. From this moment, the public's right to information attaches, and any citizen can
access all the non-proprietary information leading to such definite proposition. In Chavez v. PCGG,33 the Court
ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the
PCGG and its officers, as well as other government representatives, to disclose sufficient public
information on any proposed settlement they have decided to take up with the ostensible owners
and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of
the government, not necessarily to intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still in the process of being
formulated or are in the "exploratory" stage. There is need, of course, to observe the same
restrictions on disclosure of information in general, as discussed earlier such as on matters
involving national security, diplomatic or foreign relations, intelligence and other classified
information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that
the right to information "contemplates inclusion of negotiations leading to the consummation of the
transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.1wphi1.nt
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal, becomes a fait accompli. This negates the State policy of
full transparency on matters of public concern, a situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from participating in the public discussion of
any proposedcontract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither
an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all
its transactions involving public interest."
The right covers three categories of information which are "matters of public concern," namely: (1) official
records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3) government
research data used in formulating policies. The first category refers to any document that is part of the public
records in the custody of government agencies or officials. The second category refers to documents and
papers recording, evidencing, establishing, confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The third category refers to research data,
whether raw, collated or processed, owned by the government and used in formulating government policies.
The information that petitioner may access on the renegotiation of the JVA includes evaluation reports,
recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents
attached to such reports or minutes, all relating to the JVA. However, the right to information does not compel
PEA to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA. 34 The right only
affords access to records, documents and papers, which means the opportunity to inspect and copy them. One
who exercises the right must copy the records, documents and papers at his expense. The exercise of the right
is also subject to reasonable regulations to protect the integrity of the public records and to minimize
disruption to government operations, like rules specifying when and how to conduct the inspection and
copying.35
The right to information, however, does not extend to matters recognized as privileged information under the
separation of powers.36 The right does not also apply to information on military and diplomatic secrets,
information affecting national security, and information on investigations of crimes by law enforcement
agencies before the prosecution of the accused, which courts have long recognized as confidential. 37 The right
may also be subject to other limitations that Congress may impose by law.
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,38 are recognized as confidential. This

155

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.39This is not the situation in the instant case.

Under the Spanish Law of Waters, land reclaimed from the sea belonged to the party undertaking the
reclamation, provided the government issued the necessary permit and did not reserve ownership of the
reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public dominion as follows:

We rule, therefore, that the constitutional right to information includes official information on on-going
negotiations before a final contract. The information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public order.40 Congress has also prescribed other
limitations on the right to information in several legislations.41
Sixth issue: whether stipulations in the Amended JVA for the transfer to AMARI of lands, reclaimed or to
be reclaimed, violate the Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged areas is rooted in the Regalian doctrine
which holds that the State owns all lands and waters of the public domain. Upon the Spanish conquest of the
Philippines, ownership of all "lands, territories and possessions" in the Philippines passed to the Spanish
Crown.42The King, as the sovereign ruler and representative of the people, acquired and owned all lands and
territories in the Philippines except those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian doctrine substituting, however, the State, in lieu
of the King, as the owner of all lands and waters of the public domain. The Regalian doctrine is the foundation
of the time-honored principle of land ownership that "all lands that were not acquired from the Government,
either by purchase or by grant, belong to the public domain."43 Article 339 of the Civil Code of 1889, which is
now Article 420 of the Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law governing the ownership and disposition of
reclaimed lands in the Philippines. On May 18, 1907, the Philippine Commission enacted Act No. 1654 which
provided for the lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. Later, on November 29, 1919, the Philippine Legislature approved Act No. 2874, the Public Land
Act, which authorized the lease, but not the sale, of reclaimed lands of the government to corporations and
individuals. On November 7, 1936, the National Assembly passed Commonwealth Act No. 141, also known as
the Public Land Act, which authorized the lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. CA No. 141 continues to this day as the general law governing the classification
and disposition of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves, inlets and all waters within the maritime
zone of the Spanish territory belonged to the public domain for public use.44 The Spanish Law of Waters of
1866 allowed the reclamation of the sea under Article 5, which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by
the provinces, pueblos or private persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the terms of the grant of authority."

"Art. 339. Property of public dominion is


1. That devoted to public use, such as roads, canals, rivers, torrents, ports and bridges constructed
by the State, riverbanks, shores, roadsteads, and that of a similar character;
2. That belonging exclusively to the State which, without being of general public use, is employed
in some public service, or in the development of the national wealth, such as walls, fortresses, and
other works for the defense of the territory, and mines, until granted to private individuals."
Property devoted to public use referred to property open for use by the public. In contrast, property devoted to
public service referred to property used for some specific public service and open only to those authorized to
use the property.
Property of public dominion referred not only to property devoted to public use, but also to property not so
used but employed to develop the national wealth. This class of property constituted property of public
dominion although employed for some economic or commercial activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of property of public dominion into
private property, to wit:
"Art. 341. Property of public dominion, when no longer devoted to public use or to the defense of
the territory, shall become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or the executive department pursuant to law,
must declare the property no longer needed for public use or territorial defense before the government could
lease or alienate the property to private parties.45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654 which regulated the lease of reclaimed and
foreshore lands. The salient provisions of this law were as follows:
"Section 1. The control and disposition of the foreshore as defined in existing law, and the title to
all Government or public lands made or reclaimed by the Government by dredging or filling or
otherwise throughout the Philippine Islands, shall be retained by the Government without
prejudice to vested rights and without prejudice to rights conceded to the City of Manila in the
Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all Government or public lands made or
reclaimed by the Government by dredging or filling or otherwise to be divided into lots or blocks,
with the necessary streets and alleyways located thereon, and shall cause plats and plans of such
surveys to be prepared and filed with the Bureau of Lands.

156

(b) Upon completion of such plats and plans the Governor-General shall give notice to the public
that such parts of the lands so made or reclaimed as are not needed for public purposes will be
leased for commercial and business purposes, x x x.

Sec. 56. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the Government by dredging, filling, or other means;

xxx

(b) Foreshore;

(e) The leases above provided for shall be disposed of to the highest and best bidder therefore,
subject to such regulations and safeguards as the Governor-General may by executive order
prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all lands reclaimed by the government. The
Act also vested in the government control and disposition of foreshore lands. Private parties could lease lands
reclaimed by the government only if these lands were no longer needed for public purpose. Act No. 1654
mandated public bidding in the lease of government reclaimed lands. Act No. 1654 made government
reclaimed lands sui generis in that unlike other public lands which the government could sell to private parties,
these reclaimed lands were available only for lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law of Waters of 1866. Act No. 1654 did not
prohibit private parties from reclaiming parts of the sea under Section 5 of the Spanish Law of Waters. Lands
reclaimed from the sea by private parties with government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No. 2874, the Public Land Act.46 The salient
provisions of Act No. 2874, on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the recommendation of the Secretary of Agriculture and
Natural Resources, shall from time to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition of alienable or disposable public
lands, the Governor-General, upon recommendation by the Secretary of Agriculture and Natural
Resources, shall from time to time declare what lands are open to disposition or concession
under this Act."
Sec. 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being neither timber nor mineral land, shall
be classified as suitable for residential purposes or for commercial, industrial, or other
productive purposes other than agricultural purposes, and shall be open to disposition or
concession, shall be disposed of under the provisions of this chapter, and not otherwise.

(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c) of section fifty-six shall be disposed of to
private parties by lease only and not otherwise, as soon as the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural Resources, shall declare that the
same are not necessary for the public service and are open to disposition under this chapter. The
lands included in class (d) may be disposed of by sale or lease under the provisions of this Act."
(Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to "classify lands of the public domain into x x x
alienable or disposable"47 lands. Section 7 of the Act empowered the Governor-General to "declare what lands
are open to disposition or concession." Section 8 of the Act limited alienable or disposable lands only to those
lands which have been "officially delimited and classified."
Section 56 of Act No. 2874 stated that lands "disposable under this title48 shall be classified" as government
reclaimed, foreshore and marshy lands, as well as other lands. All these lands, however, must be suitable for
residential, commercial, industrial or other productive non-agricultural purposes. These provisions vested
upon the Governor-General the power to classify inalienable lands of the public domain into disposable lands
of the public domain. These provisions also empowered the Governor-General to classify further such
disposable lands of the public domain into government reclaimed, foreshore or marshy lands of the public
domain, as well as other non-agricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable lands of the public domain classified as
government reclaimed, foreshore and marshy lands "shall be disposed of to private parties by lease only and
not otherwise." The Governor-General, before allowing the lease of these lands to private parties, must
formally declare that the lands were "not necessary for the public service." Act No. 2874 reiterated the State
policy to lease and not to sell government reclaimed, foreshore and marshy lands of the public domain, a
policy first enunciated in 1907 in Act No. 1654. Government reclaimed, foreshore and marshy lands
remained sui generis, as the only alienable or disposable lands of the public domain that the government could
not sell to private parties.
The rationale behind this State policy is obvious. Government reclaimed, foreshore and marshy public lands
for non-agricultural purposes retain their inherent potential as areas for public service. This is the reason the
government prohibited the sale, and only allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government reclaimed, foreshore and marshy lands into
other non-agricultural lands under Section 56 (d). Lands falling under Section 56 (d) were the only lands for
non-agricultural purposes the government could sell to private parties. Thus, under Act No. 2874, the

157

government could not sell government reclaimed, foreshore and marshy lands to private parties, unless the
legislature passed a law allowing their sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts of the sea pursuant to Section 5 of the
Spanish Law of Waters of 1866. Lands reclaimed from the sea by private parties with government permission
remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its ratification by the Filipino people. The 1935
Constitution, in adopting the Regalian doctrine, declared in Section 1, Article XIII, that
"Section 1. All agricultural, timber, and mineral lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy and other natural resources of the
Philippines belong to the State, and their disposition, exploitation, development, or utilization shall
be limited to citizens of the Philippines or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, subject to any existing right, grant, lease, or
concession at the time of the inauguration of the Government established under this
Constitution. Natural resources, with the exception of public agricultural land, shall not be
alienated, and no license, concession, or lease for the exploitation, development, or utilization of
any of the natural resources shall be granted for a period exceeding twenty-five years, renewable
for another twenty-five years, except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which cases beneficial use may be the
measure and limit of the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources except public agricultural lands, which
were the only natural resources the State could alienate. Thus, foreshore lands, considered part of the State's
natural resources, became inalienable by constitutional fiat, available only for lease for 25 years, renewable for
another 25 years. The government could alienate foreshore lands only after these lands were reclaimed and
classified as alienable agricultural lands of the public domain. Government reclaimed and marshy lands of the
public domain, being neither timber nor mineral lands, fell under the classification of public agricultural
lands.50 However, government reclaimed and marshy lands, although subject to classification as disposable
public agricultural lands, could only be leased and not sold to private parties because of Act No. 2874.
The prohibition on private parties from acquiring ownership of government reclaimed and marshy lands of the
public domain was only a statutory prohibition and the legislature could therefore remove such prohibition.
The 1935 Constitution did not prohibit individuals and corporations from acquiring government reclaimed and
marshy lands of the public domain that were classified as agricultural lands under existing public land laws.
Section 2, Article XIII of the 1935 Constitution provided as follows:
"Section 2. No private corporation or association may acquire, lease, or hold public agricultural
lands in excess of one thousand and twenty four hectares, nor may any individual acquire such
lands by purchase in excess of one hundred and forty hectares, or by lease in excess of one
thousand and twenty-four hectares, or by homestead in excess of twenty-four hectares. Lands
adapted to grazing, not exceeding two thousand hectares, may be leased to an individual, private
corporation, or association." (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did not repeal Section 58 of Act No. 2874 to
open for sale to private parties government reclaimed and marshy lands of the public domain. On the contrary,
the legislature continued the long established State policy of retaining for the government title and ownership
of government reclaimed and marshy lands of the public domain.

Commonwealth Act No. 141 of the Philippine National Assembly


On November 7, 1936, the National Assembly approved Commonwealth Act No. 141, also known as the
Public Land Act, which compiled the then existing laws on lands of the public domain. CA No. 141, as
amended, remains to this day the existing general law governing the classification and disposition of lands of
the public domain other than timber and mineral lands.51
Section 6 of CA No. 141 empowers the President to classify lands of the public domain into "alienable or
disposable"52 lands of the public domain, which prior to such classification are inalienable and outside the
commerce of man. Section 7 of CA No. 141 authorizes the President to "declare what lands are open to
disposition or concession." Section 8 of CA No. 141 states that the government can declare open for
disposition or concession only lands that are "officially delimited and classified." Sections 6, 7 and 8 of CA
No. 141 read as follows:
"Sec. 6. The President, upon the recommendation of the Secretary of Agriculture and
Commerce, shall from time to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands from one class to another,53 for the
purpose of their administration and disposition.
Sec. 7. For the purposes of the administration and disposition of alienable or disposable public
lands, the President, upon recommendation by the Secretary of Agriculture and Commerce, shall
from time to time declare what lands are open to disposition or concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or concession which have been
officially delimited and classified and, when practicable, surveyed, and which have not been
reserved for public or quasi-public uses, nor appropriated by the Government, nor in any manner
become private property, nor those on which a private right authorized and recognized by this Act
or any other valid law may be claimed, or which, having been reserved or appropriated, have
ceased to be so. x x x."
Thus, before the government could alienate or dispose of lands of the public domain, the President must first
officially classify these lands as alienable or disposable, and then declare them open to disposition or
concession. There must be no law reserving these lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed, foreshore and marshy lands of the public
domain, are as follows:
"Sec. 58. Any tract of land of the public domain which, being neither timber nor mineral land, is
intended to be used for residential purposes or for commercial, industrial, or other productive
purposes other than agricultural, and is open to disposition or concession, shall be disposed of
under the provisions of this chapter and not otherwise.

158

Sec. 59. The lands disposable under this title shall be classified as follows:

As observed by Justice Puno in his concurring opinion, "Commonwealth Act No. 141 has remained in effect at
present."

(a) Lands reclaimed by the Government by dredging, filling, or other means;


(b) Foreshore;
(c) Marshy lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers;
(d) Lands not included in any of the foregoing classes.
Sec. 60. Any tract of land comprised under this title may be leased or sold, as the case may be, to
any person, corporation, or association authorized to purchase or lease public lands for agricultural
purposes. x x x.
Sec. 61. The lands comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed of
to private parties by lease only and not otherwise, as soon as the President, upon recommendation
by the Secretary of Agriculture, shall declare that the same are not necessary for the public
service and are open to disposition under this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935 Constitution, Section 58 of Act No. 2874
prohibiting the sale of government reclaimed, foreshore and marshy disposable lands of the public domain. All
these lands are intended for residential, commercial, industrial or other non-agricultural purposes. As before,
Section 61 allowed only the lease of such lands to private parties. The government could sell to private parties
only lands falling under Section 59 (d) of CA No. 141, or those lands for non-agricultural purposes not
classified as government reclaimed, foreshore and marshy disposable lands of the public domain. Foreshore
lands, however, became inalienable under the 1935 Constitution which only allowed the lease of these lands to
qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of the public domain intended for residential,
commercial, industrial or other productive purposes other than agricultural "shall be disposed of under the
provisions of this chapter and not otherwise." Under Section 10 of CA No. 141, the term "disposition"
includes lease of the land. Any disposition of government reclaimed, foreshore and marshy disposable lands
for non-agricultural purposes must comply with Chapter IX, Title III of CA No. 141,54 unless a subsequent law
amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real Estate Corporation v. Court of
Appeals,55Justice Reynato S. Puno summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed
by the government by dredging, filling, or other means. Act 1654 mandated that the control and
disposition of the foreshore and lands under water remained in the national government. Said law
allowed only the 'leasing' of reclaimed land. The Public Land Acts of 1919 and 1936 also declared
that the foreshore and lands reclaimed by the government were to be "disposed of to private parties
by lease only and not otherwise." Before leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and Natural Resources, had first to determine that
the land reclaimed was not necessary for the public service. This requisite must have been met
before the land could be disposed of. But even then, the foreshore and lands under water were
not to be alienated and sold to private parties. The disposition of the reclaimed land was only by
lease. The land remained property of the State." (Emphasis supplied)

The State policy prohibiting the sale to private parties of government reclaimed, foreshore and marshy
alienable lands of the public domain, first implemented in 1907 was thus reaffirmed in CA No. 141 after the
1935 Constitution took effect. The prohibition on the sale of foreshore lands, however, became a constitutional
edict under the 1935 Constitution. Foreshore lands became inalienable as natural resources of the State, unless
reclaimed by the government and classified as agricultural lands of the public domain, in which case they
would fall under the classification of government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed and marshy disposable lands of the public
domain continued to be only leased and not sold to private parties.56 These lands remained sui generis, as the
only alienable or disposable lands of the public domain the government could not sell to private parties.
Since then and until now, the only way the government can sell to private parties government reclaimed and
marshy disposable lands of the public domain is for the legislature to pass a law authorizing such sale. CA No.
141 does not authorize the President to reclassify government reclaimed and marshy lands into other nonagricultural lands under Section 59 (d). Lands classified under Section 59 (d) are the only alienable or
disposable lands for non-agricultural purposes that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional authority before lands under Section 59
that the government previously transferred to government units or entities could be sold to private parties.
Section 60 of CA No. 141 declares that
"Sec. 60. x x x The area so leased or sold shall be such as shall, in the judgment of the Secretary of
Agriculture and Natural Resources, be reasonably necessary for the purposes for which such sale or
lease is requested, and shall not exceed one hundred and forty-four hectares: Provided, however,
That this limitation shall not apply to grants, donations, or transfers made to a province,
municipality or branch or subdivision of the Government for the purposes deemed by said entities
conducive to the public interest;but the land so granted, donated, or transferred to a province,
municipality or branch or subdivision of the Government shall not be alienated, encumbered, or
otherwise disposed of in a manner affecting its title, except when authorized by Congress: x x x."
(Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141 mirrors the legislative authority required in
Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA No. 141 exempted government units and
entities from the maximum area of public lands that could be acquired from the State. These government units
and entities should not just turn around and sell these lands to private parties in violation of constitutional or
statutory limitations. Otherwise, the transfer of lands for non-agricultural purposes to government units and
entities could be used to circumvent constitutional limitations on ownership of alienable or disposable lands of
the public domain. In the same manner, such transfers could also be used to evade the statutory prohibition in
CA No. 141 on the sale of government reclaimed and marshy lands of the public domain to private parties.
Section 60 of CA No. 141 constitutes by operation of law a lien on these lands.57
In case of sale or lease of disposable lands of the public domain falling under Section 59 of CA No. 141,
Sections 63 and 67 require a public bidding. Sections 63 and 67 of CA No. 141 provide as follows:
"Sec. 63. Whenever it is decided that lands covered by this chapter are not needed for public
purposes, the Director of Lands shall ask the Secretary of Agriculture and Commerce (now the

159

Secretary of Natural Resources) for authority to dispose of the same. Upon receipt of such
authority, the Director of Lands shall give notice by public advertisement in the same manner as in
the case of leases or sales of agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding; and adjudication shall be made to the
highest bidder. x x x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction all leases or sales of alienable or
disposable lands of the public domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not repeal Section 5 of the Spanish Law of
Waters of 1866. Private parties could still reclaim portions of the sea with government permission. However,
thereclaimed land could become private land only if classified as alienable agricultural land of the public
domain open to disposition under CA No. 141. The 1935 Constitution prohibited the alienation of all natural
resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of property of public dominion found in the
Civil Code of 1889. Articles 420 and 422 of the Civil Code of 1950 state that

"Sec. 8. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils, all
forces of potential energy, fisheries, wildlife, and other natural resources of the Philippines belong
to the State. With the exception of agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural resources shall not be alienated, and no license,
concession, or lease for the exploration, development, exploitation, or utilization of any of the
natural resources shall be granted for a period exceeding twenty-five years, renewable for not more
than twenty-five years, except as to water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which cases, beneficial use may be the measure
and the limit of the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources with the exception of "agricultural,
industrial or commercial, residential, and resettlement lands of the public domain." In contrast, the 1935
Constitution barred the alienation of all natural resources except "public agricultural lands." However, the term
"public agricultural lands" in the 1935 Constitution encompassed industrial, commercial, residential and
resettlement lands of the public domain.60 If the land of public domain were neither timber nor mineral land, it
would fall under the classification of agricultural land of the public domain. Both the 1935 and 1973
Constitutions, therefore, prohibited the alienation of all natural resources except agricultural lands of the
public domain.
The 1973 Constitution, however, limited the alienation of lands of the public domain to individuals who were
citizens of the Philippines. Private corporations, even if wholly owned by Philippine citizens, were no longer
allowed to acquire alienable lands of the public domain unlike in the 1935 Constitution. Section 11, Article
XIV of the 1973 Constitution declared that

"Art. 420. The following things are property of public dominion:


(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges
constructed by the State, banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public use, and are intended for some public
service or for the development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer intended for public use or for public service,
shall form part of the patrimonial property of the State."
Again, the government must formally declare that the property of public dominion is no longer needed for
public use or public service, before the same could be classified as patrimonial property of the State. 59 In the
case of government reclaimed and marshy lands of the public domain, the declaration of their being
disposable, as well as the manner of their disposition, is governed by the applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of public dominion those properties
of the State which, without being for public use, are intended for public service or the "development of the
national wealth." Thus, government reclaimed and marshy lands of the State, even if not employed for public
use or public service, if developed to enhance the national wealth, are classified as property of public
dominion.

"Sec. 11. The Batasang Pambansa, taking into account conservation, ecological, and development
requirements of the natural resources, shall determine by law the size of land of the public domain
which may be developed, held or acquired by, or leased to, any qualified individual, corporation, or
association, and the conditions therefor. No private corporation or association may hold alienable
lands of the public domain except by lease not to exceed one thousand hectares in area nor may
any citizen hold such lands by lease in excess of five hundred hectares or acquire by purchase,
homestead or grant, in excess of twenty-four hectares. No private corporation or association may
hold by lease, concession, license or permit, timber or forest lands and other timber or forest
resources in excess of one hundred thousand hectares. However, such area may be increased by the
Batasang Pambansa upon recommendation of the National Economic and Development Authority."
(Emphasis supplied)
Thus, under the 1973 Constitution, private corporations could hold alienable lands of the public domain only
through lease. Only individuals could now acquire alienable lands of the public domain, and private
corporations became absolutely barred from acquiring any kind of alienable land of the public domain. The
constitutional ban extended to all kinds of alienable lands of the public domain, while the statutory ban under
CA No. 141 applied only to government reclaimed, foreshore and marshy alienable lands of the public domain.
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued Presidential Decree No. 1084 creating PEA, a
wholly government owned and controlled corporation with a special charter. Sections 4 and 8 of PD No. 1084,
vests PEA with the following purposes and powers:

Dispositions under the 1973 Constitution

"Sec. 4. Purpose. The Authority is hereby created for the following purposes:

The 1973 Constitution, which took effect on January 17, 1973, likewise adopted the Regalian doctrine. Section
8, Article XIV of the 1973 Constitution stated that

(a) To reclaim land, including foreshore and submerged areas, by dredging, filling or other
means, or to acquire reclaimed land;

160

(b) To develop, improve, acquire, administer, deal in, subdivide, dispose, lease and sell any and all
kinds of lands, buildings, estates and other forms of real property, owned, managed, controlled
and/or operated by the government;
(c) To provide for, operate or administer such service as may be necessary for the efficient,
economical and beneficial utilization of the above properties.

Without such legislative authority, PEA could not sell but only lease its reclaimed foreshore and submerged
alienable lands of the public domain. Nevertheless, any legislative authority granted to PEA to sell its
reclaimed alienable lands of the public domain would be subject to the constitutional ban on private
corporations from acquiring alienable lands of the public domain. Hence, such legislative authority could only
benefit private individuals.
Dispositions under the 1987 Constitution

Sec. 5. Powers and functions of the Authority. The Authority shall, in carrying out the purposes for
which it is created, have the following powers and functions:
(a)To prescribe its by-laws.
xxx
(i) To hold lands of the public domain in excess of the area permitted to private corporations by
statute.
(j) To reclaim lands and to construct work across, or otherwise, any stream, watercourse, canal,
ditch, flume x x x.
xxx
(o) To perform such acts and exercise such functions as may be necessary for the attainment of the
purposes and objectives herein specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and submerged areas of the public domain. Foreshore
areas are those covered and uncovered by the ebb and flow of the tide.61 Submerged areas are those
permanently under water regardless of the ebb and flow of the tide.62 Foreshore and submerged areas
indisputably belong to the public domain63 and are inalienable unless reclaimed, classified as alienable lands
open to disposition, and further declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from acquiring alienable lands of the public domain
did not apply to PEA since it was then, and until today, a fully owned government corporation. The
constitutional ban applied then, as it still applies now, only to "private corporations and associations." PD No.
1084 expressly empowers PEA "to hold lands of the public domain" even "in excess of the area permitted to
private corporations by statute." Thus, PEA can hold title to private lands, as well as title to lands of the
public domain.

The 1987 Constitution, like the 1935 and 1973 Constitutions before it, has adopted the Regalian doctrine. The
1987 Constitution declares that all natural resources are "owned by the State," and except for alienable
agricultural lands of the public domain, natural resources cannot be alienated. Sections 2 and 3, Article XII of
the 1987 Constitution state that
"Section 2. All lands of the public domain, waters, minerals, coal, petroleum and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. The exploration, development, and utilization of natural
resources shall be under the full control and supervision of the State. x x x.
Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral
lands, and national parks. Agricultural lands of the public domain may be further classified by law
according to the uses which they may be devoted. Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or associations may not hold such alienable
lands of the public domain except by lease, for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and not to exceed one thousand hectares in area.
Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than
twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and development, and subject to the
requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the
public domain which may be acquired, developed, held, or leased and the conditions therefor."
(Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973 Constitution banning private corporations
fromacquiring any kind of alienable land of the public domain. Like the 1973 Constitution, the 1987
Constitution allows private corporations to hold alienable lands of the public domain only through lease. As in
the 1935 and 1973 Constitutions, the general law governing the lease to private corporations of reclaimed,
foreshore and marshy alienable lands of the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban

In order for PEA to sell its reclaimed foreshore and submerged alienable lands of the public domain, there
must be legislative authority empowering PEA to sell these lands. This legislative authority is necessary in
view of Section 60 of CA No.141, which states
"Sec. 60. x x x; but the land so granted, donated or transferred to a province, municipality, or
branch or subdivision of the Government shall not be alienated, encumbered or otherwise disposed
of in a manner affecting its title, except when authorized by Congress; x x x." (Emphasis supplied)

The rationale behind the constitutional ban on corporations from acquiring, except through lease, alienable
lands of the public domain is not well understood. During the deliberations of the 1986 Constitutional
Commission, the commissioners probed the rationale behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:
`No private corporation or association may hold alienable lands of the public domain except by
lease, not to exceed one thousand hectares in area.'

161

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the
1973 Constitution. In effect, it prohibits private corporations from acquiring alienable public
lands. But it has not been very clear in jurisprudence what the reason for this is. In some of the
cases decided in 1982 and 1983, it was indicated that the purpose of this is to prevent large
landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the
Iglesia ni Cristo was not allowed to acquire a mere 313-square meter land where a chapel stood
because the Supreme Court said it would be in violation of this." (Emphasis supplied)

1. "[T]hree partially reclaimed and substantially eroded islands along Emilio Aguinaldo Boulevard
in Paranaque and Las Pinas, Metro Manila, with a combined titled area of 1,578,441 square
meters;"
2. "[A]nother area of 2,421,559 square meters contiguous to the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an additional 350 hectares more or less to regularize
the configuration of the reclaimed area." 65
PEA confirms that the Amended JVA involves "the development of the Freedom Islands and further
reclamation of about 250 hectares x x x," plus an option "granted to AMARI to subsequently reclaim another
350 hectares x x x."66

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition against purchases of public agricultural lands
by private corporations is to equitably diffuse land ownership or to encourage 'owner-cultivatorship
and the economic family-size farm' and to prevent a recurrence of cases like the instant case. Huge
landholdings by corporations or private persons had spawned social unrest."
However, if the constitutional intent is to prevent huge landholdings, the Constitution could have simply
limited the size of alienable lands of the public domain that corporations could acquire. The Constitution could
have followed the limitations on individuals, who could acquire not more than 24 hectares of alienable lands of
the public domain under the 1973 Constitution, and not more than 12 hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size farms, placing the land in the name of a
corporation would be more effective in preventing the break-up of farmlands. If the farmland is registered in
the name of a corporation, upon the death of the owner, his heirs would inherit shares in the corporation
instead of subdivided parcels of the farmland. This would prevent the continuing break-up of farmlands into
smaller and smaller plots from one generation to the next.
In actual practice, the constitutional ban strengthens the constitutional limitation on individuals from acquiring
more than the allowed area of alienable lands of the public domain. Without the constitutional ban, individuals
who already acquired the maximum area of alienable lands of the public domain could easily set up
corporations to acquire more alienable public lands. An individual could own as many corporations as his
means would allow him. An individual could even hide his ownership of a corporation by putting his nominees
as stockholders of the corporation. The corporation is a convenient vehicle to circumvent the constitutional
limitation on acquisition by individuals of alienable lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to transfer ownership of only a limited area
of alienable land of the public domain to a qualified individual. This constitutional intent is safeguarded by the
provision prohibiting corporations from acquiring alienable lands of the public domain, since the vehicle to
circumvent the constitutional intent is removed. The available alienable public lands are gradually decreasing
in the face of an ever-growing population. The most effective way to insure faithful adherence to this
constitutional intent is to grant or sell alienable lands of the public domain only to individuals. This, it would
seem, is the practical benefit arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second Whereas clause, consists of three properties,
namely:

In short, the Amended JVA covers a reclamation area of 750 hectares. Only 157.84 hectares of the 750hectare reclamation project have been reclaimed, and the rest of the 592.15 hectares are still submerged
areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of P1,894,129,200.00 for PEA's "actual cost"
in partially reclaiming the Freedom Islands. AMARI will also complete, at its own expense, the reclamation of
the Freedom Islands. AMARI will further shoulder all the reclamation costs of all the other areas, totaling
592.15 hectares, still to be reclaimed. AMARI and PEA will share, in the proportion of 70 percent and 30
percent, respectively, the total net usable area which is defined in the Amended JVA as the total reclaimed area
less 30 percent earmarked for common areas. Title to AMARI's share in the net usable area, totaling 367.5
hectares, will be issued in the name of AMARI. Section 5.2 (c) of the Amended JVA provides that
"x x x, PEA shall have the duty to execute without delay the necessary deed of transfer or
conveyance of the title pertaining to AMARI's Land share based on the Land Allocation Plan. PEA,
when requested in writing by AMARI, shall then cause the issuance and delivery of the proper
certificates of title covering AMARI's Land Share in the name of AMARI, x x x; provided, that if
more than seventy percent (70%) of the titled area at any given time pertains to AMARI, PEA shall
deliver to AMARI only seventy percent (70%) of the titles pertaining to AMARI, until such time
when a corresponding proportionate area of additional land pertaining to PEA has been titled."
(Emphasis supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a maximum of 367.5 hectares of
reclaimed land which will be titled in its name.
To implement the Amended JVA, PEA delegated to the unincorporated PEA-AMARI joint venture PEA's
statutory authority, rights and privileges to reclaim foreshore and submerged areas in Manila Bay. Section 3.2.a
of the Amended JVA states that
"PEA hereby contributes to the joint venture its rights and privileges to perform Rawland
Reclamation and Horizontal Development as well as own the Reclamation Area, thereby granting
the Joint Venture the full and exclusive right, authority and privilege to undertake the Project in
accordance with the Master Development Plan."
The Amended JVA is the product of a renegotiation of the original JVA dated April 25, 1995 and its
supplemental agreement dated August 9, 1995.
The Threshold Issue

162

The threshold issue is whether AMARI, a private corporation, can acquire and own under the Amended JVA
367.5 hectares of reclaimed foreshore and submerged areas in Manila Bay in view of Sections 2 and 3, Article
XII of the 1987 Constitution which state that:
"Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other
natural resources shall not be alienated. x x x.
xxx
Section 3. x x x Alienable lands of the public domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands of the public domain except by
lease, x x x."(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or submerged areas of Manila Bay are alienable or
disposable lands of the public domain. In its Memorandum,67 PEA admits that
"Under the Public Land Act (CA 141, as amended), reclaimed lands are classified as alienable
and disposable lands of the public domain:
'Sec. 59. The lands disposable under this title shall be classified as follows:
(a) Lands reclaimed by the government by dredging, filling, or other means;
x x x.'" (Emphasis supplied)
Likewise, the Legal Task Force68 constituted under Presidential Administrative Order No. 365 admitted in its
Report and Recommendation to then President Fidel V. Ramos, "[R]eclaimed lands are classified as
alienable and disposable lands of the public domain."69 The Legal Task Force concluded that
"D. Conclusion
Reclaimed lands are lands of the public domain. However, by statutory authority, the rights of
ownership and disposition over reclaimed lands have been transferred to PEA, by virtue of which
PEA, as owner, may validly convey the same to any qualified person without violating the
Constitution or any statute.
The constitutional provision prohibiting private corporations from holding public land, except by
lease (Sec. 3, Art. XVII,70 1987 Constitution), does not apply to reclaimed lands whose ownership
has passed on to PEA by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila Bay are
part of the "lands of the public domain, waters x x x and other natural resources" and consequently "owned by
the State." As such, foreshore and submerged areas "shall not be alienated," unless they are classified as
"agricultural lands" of the public domain. The mere reclamation of these areas by PEA does not convert these
inalienable natural resources of the State into alienable or disposable lands of the public domain. There must

be a law or presidential proclamation officially classifying these reclaimed lands as alienable or disposable and
open to disposition or concession. Moreover, these reclaimed lands cannot be classified as alienable or
disposable if the law has reserved them for some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be declared open to disposition or concession
which have been officially delimited and classified."72 The President has the authority to classify inalienable
lands of the public domain into alienable or disposable lands of the public domain, pursuant to Section 6 of CA
No. 141. In Laurel vs. Garcia,73 the Executive Department attempted to sell the Roppongi property in Tokyo,
Japan, which was acquired by the Philippine Government for use as the Chancery of the Philippine Embassy.
Although the Chancery had transferred to another location thirteen years earlier, the Court still ruled that,
under Article 42274of the Civil Code, a property of public dominion retains such character until formally
declared otherwise. The Court ruled that
"The fact that the Roppongi site has not been used for a long time for actual Embassy service does
not automatically convert it to patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481
[1975]. A property continues to be part of the public domain, not available for private
appropriation or ownership 'until there is a formal declaration on the part of the government to
withdraw it from being such'(Ignacio v. Director of Lands, 108 Phil. 335 [1960]." (Emphasis
supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands reclaimed
by PEA from the foreshore or submerged areas of Manila Bay. On January 19, 1988 then President Corazon C.
Aquino issued Special Patent No. 3517 in the name of PEA for the 157.84 hectares comprising the partially
reclaimed Freedom Islands. Subsequently, on April 9, 1999 the Register of Deeds of the Municipality of
Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529
authorizing the issuance of certificates of title corresponding to land patents. To this day, these certificates of
title are still in the name of PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the Freedom
Islands, is equivalent to an official proclamation classifying the Freedom Islands as alienable or disposable
lands of the public domain. PD No. 1085 and President Aquino's issuance of a land patent also constitute a
declaration that the Freedom Islands are no longer needed for public service. The Freedom Islands are thus
alienable or disposable lands of the public domain, open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom
Islands although subsequently there were partial erosions on some areas. The government had also completed
the necessary surveys on these islands. Thus, the Freedom Islands were no longer part of Manila Bay but part
of the land mass. Section 3, Article XII of the 1987 Constitution classifies lands of the public domain into
"agricultural, forest or timber, mineral lands, and national parks." Being neither timber, mineral, nor national
park lands, the reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of the
public domain. Under the 1987 Constitution, agricultural lands of the public domain are the only natural
resources that the State may alienate to qualified private parties. All other natural resources, such as the seas or
bays, are "waters x x x owned by the State" forming part of the public domain, and are inalienable pursuant to
Section 2, Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation,
reclaimed the islands under a contract dated November 20, 1973 with the Commissioner of Public Highways.
AMARI, citing Article 5 of the Spanish Law of Waters of 1866, argues that "if the ownership of reclaimed
lands may be given to the party constructing the works, then it cannot be said that reclaimed lands are lands of
the public domain which the State may not alienate." 75 Article 5 of the Spanish Law of Waters reads as follows:

163

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by
the provinces, pueblos or private persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the terms of the grant of authority."
(Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only with
"proper permission" from the State. Private parties could own the reclaimed land only if not "otherwise
provided by the terms of the grant of authority." This clearly meant that no one could reclaim from the sea
without permission from the State because the sea is property of public dominion. It also meant that the State
could grant or withhold ownership of the reclaimed land because any reclaimed land, like the sea from which it
emerged, belonged to the State. Thus, a private person reclaiming from the sea without permission from the
State could not acquire ownership of the reclaimed land which would remain property of public dominion like
the sea it replaced.76 Article 5 of the Spanish Law of Waters of 1866 adopted the time-honored principle of
land ownership that "all lands that were not acquired from the government, either by purchase or by grant,
belong to the public domain."77
Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the
disposition of public lands. In particular, CA No. 141 requires that lands of the public domain must first be
classified as alienable or disposable before the government can alienate them. These lands must not be
reserved for public or quasi-public purposes.78 Moreover, the contract between CDCP and the government was
executed after the effectivity of the 1973 Constitution which barred private corporations from acquiring any
kind of alienable land of the public domain. This contract could not have converted the Freedom Islands into
private lands of a private corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the reclamation of areas
under water and revested solely in the National Government the power to reclaim lands. Section 1 of PD No.
3-A declared that
"The provisions of any law to the contrary notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the National Government or any person
authorized by it under a proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under
water could now be undertaken only by the National Government or by a person contracted by the National
Government. Private parties may reclaim from the sea only under a contract with the National Government,
and no longer by grant or permission as provided in Section 5 of the Spanish Law of Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated PEA as the National Government's
implementing arm to undertake "all reclamation projects of the government," which "shall be undertaken by
the PEA or through a proper contract executed by it with any person or entity." Under such contract, a
private party receives compensation for reclamation services rendered to PEA. Payment to the contractor may
be in cash, or in kind consisting of portions of the reclaimed land, subject to the constitutional ban on private
corporations from acquiring alienable lands of the public domain. The reclaimed land can be used as payment
in kind only if the reclaimed land is first classified as alienable or disposable land open to disposition, and then
declared no longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still
submerged and forming part of Manila Bay. There is no legislative or Presidential act classifying these
submerged areas as alienable or disposable lands of the public domain open to disposition. These submerged
areas are not covered by any patent or certificate of title. There can be no dispute that these submerged areas

form part of the public domain, and in their present state are inalienable and outside the commerce of man.
Until reclaimed from the sea, these submerged areas are, under the Constitution, "waters x x x owned by the
State," forming part of the public domain and consequently inalienable. Only when actually reclaimed from the
sea can these submerged areas be classified as public agricultural lands, which under the Constitution are the
only natural resources that the State may alienate. Once reclaimed and transformed into public agricultural
lands, the government may then officially classify these lands as alienable or disposable lands open to
disposition. Thereafter, the government may declare these lands no longer needed for public service. Only then
can these reclaimed lands be considered alienable or disposable lands of the public domain and within the
commerce of man.
The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable lands open
to disposition is necessary because PEA is tasked under its charter to undertake public services that require the
use of lands of the public domain. Under Section 5 of PD No. 1084, the functions of PEA include the
following: "[T]o own or operate railroads, tramways and other kinds of land transportation, x x x; [T]o
construct, maintain and operate such systems of sanitary sewers as may be necessary; [T]o construct, maintain
and operate such storm drains as may be necessary." PEA is empowered to issue "rules and regulations as may
be necessary for the proper use by private parties of any or all of the highways, roads, utilities, buildings
and/or any of its properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed
foreshore and submerged lands held by the PEA would actually be needed for public use or service since many
of the functions imposed on PEA by its charter constitute essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for
integrating, directing, and coordinating all reclamation projects for and on behalf of the National Government."
The same section also states that "[A]ll reclamation projects shall be approved by the President upon
recommendation of the PEA, and shall be undertaken by the PEA or through a proper contract executed by it
with any person or entity; x x x." Thus, under EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA
became the primary implementing agency of the National Government to reclaim foreshore and submerged
lands of the public domain. EO No. 525 recognized PEA as the government entity "to undertake the
reclamation of lands and ensure their maximum utilization in promoting public welfare and interests."79 Since
large portions of these reclaimed lands would obviously be needed for public service, there must be a formal
declaration segregating reclaimed lands no longer needed for public service from those still needed for public
service.1wphi1.nt
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by the
PEA," could not automatically operate to classify inalienable lands into alienable or disposable lands of the
public domain. Otherwise, reclaimed foreshore and submerged lands of the public domain would automatically
become alienable once reclaimed by PEA, whether or not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests in the
Department of Environment and Natural Resources ("DENR" for brevity) the following powers and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest lands, alienable and disposable public lands,
mineral resources and, in the process of exercising such control, impose appropriate taxes, fees,
charges, rentals and any such form of levy and collect such revenues for the exploration,
development, utilization or gathering of such resources;

164

xxx
(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits,
concessions, lease agreements and such other privileges concerning the development,
exploration and utilization of the country's marine, freshwater, and brackish water and over all
aquatic resources of the country and shall continue to oversee, supervise and police our natural
resources; cancel or cause to cancel such privileges upon failure, non-compliance or violations of
any regulation, order, and for all other causes which are in furtherance of the conservation of
natural resources and supportive of the national interest;
(15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public
domain and serve as the sole agency responsible for classification, sub-classification, surveying
and titling of lands in consultation with appropriate agencies." 80 (Emphasis supplied)
As manager, conservator and overseer of the natural resources of the State, DENR exercises "supervision and
control over alienable and disposable public lands." DENR also exercises "exclusive jurisdiction on the
management and disposition of all lands of the public domain." Thus, DENR decides whether areas under
water, like foreshore or submerged areas of Manila Bay, should be reclaimed or not. This means that PEA
needs authorization from DENR before PEA can undertake reclamation projects in Manila Bay, or in any part
of the country.
DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence,
DENR decides whether reclaimed lands of PEA should be classified as alienable under Sections 6 81 and 782 of
CA No. 141. Once DENR decides that the reclaimed lands should be so classified, it then recommends to the
President the issuance of a proclamation classifying the lands as alienable or disposable lands of the public
domain open to disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr. countersigned
Special Patent No. 3517 in compliance with the Revised Administrative Code and Sections 6 and 7 of CA No.
141.
In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is
vested with the power to undertake the physical reclamation of areas under water, whether directly or through
private contractors. DENR is also empowered to classify lands of the public domain into alienable or
disposable lands subject to the approval of the President. On the other hand, PEA is tasked to develop, sell or
lease the reclaimed alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make the
reclaimed lands alienable or disposable lands of the public domain, much less patrimonial lands of PEA.
Likewise, the mere transfer by the National Government of lands of the public domain to PEA does not make
the lands alienable or disposable lands of the public domain, much less patrimonial lands of PEA.
Absent two official acts a classification that these lands are alienable or disposable and open to disposition
and a declaration that these lands are not needed for public service, lands reclaimed by PEA remain inalienable
lands of the public domain. Only such an official classification and formal declaration can convert reclaimed
lands into alienable or disposable lands of the public domain, open to disposition under the Constitution, Title I
and Title III83of CA No. 141 and other applicable laws.84
PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain, the
reclaimed lands shall be disposed of in accordance with CA No. 141, the Public Land Act. PEA, citing Section
60 of CA No. 141, admits that reclaimed lands transferred to a branch or subdivision of the government "shall
not be alienated, encumbered, or otherwise disposed of in a manner affecting its title, except when authorized
by Congress: x x x."85 (Emphasis by PEA)
In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which states
that
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the
Government is authorized by law to be conveyed, the deed of conveyance shall be executed in
behalf of the government by the following: x x x."
Thus, the Court concluded that a law is needed to convey any real property belonging to the Government. The
Court declared that "It is not for the President to convey real property of the government on his or her own sole
will. Any such conveyance must be authorized and approved by a law enacted by the Congress. It
requires executive and legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its
reclaimed lands. PD No. 1085, issued on February 4, 1977, provides that
"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the contract
for the reclamation and construction of the Manila-Cavite Coastal Road Project between the
Republic of the Philippines and the Construction and Development Corporation of the Philippines
dated November 20, 1973 and/or any other contract or reclamation covering the same area is
hereby transferred, conveyed and assigned to the ownership and administration of the Public
Estates Authority established pursuant to PD No. 1084; Provided, however, That the rights and
interests of the Construction and Development Corporation of the Philippines pursuant to the
aforesaid contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations of the
Republic of the Philippines (Department of Public Highways) arising from, or incident to, the
aforesaid contract between the Republic of the Philippines and the Construction and Development
Corporation of the Philippines.
In consideration of the foregoing transfer and assignment, the Public Estates Authority shall issue in
favor of the Republic of the Philippines the corresponding shares of stock in said entity with an
issued value of said shares of stock (which) shall be deemed fully paid and non-assessable.
The Secretary of Public Highways and the General Manager of the Public Estates Authority shall
execute such contracts or agreements, including appropriate agreements with the Construction and
Development Corporation of the Philippines, as may be necessary to implement the above.
Special land patent/patents shall be issued by the Secretary of Natural Resources in favor of the
Public Estates Authority without prejudice to the subsequent transfer to the contractor or his
assignees of such portion or portions of the land reclaimed or to be reclaimed as provided for in
the above-mentioned contract. On the basis of such patents, the Land Registration Commission
shall issue the corresponding certificate of title." (Emphasis supplied)

165

On the other hand, Section 3 of EO No. 525, issued on February 14, 1979, provides that "Sec. 3. All lands reclaimed by PEA shall belong to or be owned by the PEA which shall be
responsible for its administration, development, utilization or disposition in accordance with the
provisions of Presidential Decree No. 1084. Any and all income that the PEA may derive from the
sale, lease or use of reclaimed lands shall be used in accordance with the provisions of Presidential
Decree No. 1084."
There is no express authority under either PD No. 1085 or EO No. 525 for PEA to sell its reclaimed lands. PD
No. 1085 merely transferred "ownership and administration" of lands reclaimed from Manila Bay to PEA,
while EO No. 525 declared that lands reclaimed by PEA "shall belong to or be owned by PEA." EO No. 525
expressly states that PEA should dispose of its reclaimed lands "in accordance with the provisions of
Presidential Decree No. 1084," the charter of PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve, acquire, administer, deal in, subdivide,
dispose, lease and sell any and all kinds of lands x x x owned, managed, controlled and/or operated by the
government."87 (Emphasis supplied) There is, therefore, legislative authority granted to PEA to sell its lands,
whether patrimonial or alienable lands of the public domain. PEA may sell to private parties itspatrimonial
properties in accordance with the PEA charter free from constitutional limitations. The constitutional ban on
private corporations from acquiring alienable lands of the public domain does not apply to the sale of PEA's
patrimonial lands.
PEA may also sell its alienable or disposable lands of the public domain to private individuals since, with the
legislative authority, there is no longer any statutory prohibition against such sales and the constitutional ban
does not apply to individuals. PEA, however, cannot sell any of its alienable or disposable lands of the public
domain to private corporations since Section 3, Article XII of the 1987 Constitution expressly prohibits such
sales. The legislative authority benefits only individuals. Private corporations remain barred from acquiring
any kind of alienable land of the public domain, including government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed lands could be transferred by PEA to the
"contractor or his assignees" (Emphasis supplied) would not apply to private corporations but only to
individuals because of the constitutional ban. Otherwise, the provisions of PD No. 1085 would violate both the
1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or disposable lands open to disposition, and
further declared no longer needed for public service, PEA would have to conduct a public bidding in selling or
leasing these lands. PEA must observe the provisions of Sections 63 and 67 of CA No. 141 requiring public
auction, in the absence of a law exempting PEA from holding a public auction.88 Special Patent No. 3517
expressly states that the patent is issued by authority of the Constitution and PD No. 1084, "supplemented by
Commonwealth Act No. 141, as amended." This is an acknowledgment that the provisions of CA No. 141
apply to the disposition of reclaimed alienable lands of the public domain unless otherwise provided by law.
Executive Order No. 654,89 which authorizes PEA "to determine the kind and manner of payment for the
transfer" of its assets and properties, does not exempt PEA from the requirement of public auction. EO No. 654
merely authorizes PEA to decide the mode of payment, whether in kind and in installment, but does not
authorize PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the Government Auditing Code, the
government is required to sell valuable government property through public bidding. Section 79 of PD No.
1445 mandates that

"Section 79. When government property has become unserviceable for any cause, or is no longer
needed, it shall, upon application of the officer accountable therefor, be inspected by the head of the
agency or his duly authorized representative in the presence of the auditor concerned and, if found
to be valueless or unsaleable, it may be destroyed in their presence. If found to be valuable, it may
be sold at public auction to the highest bidder under the supervision of the proper committee on
award or similar body in the presence of the auditor concerned or other authorized representative of
the Commission, after advertising by printed notice in the Official Gazette, or for not less than
three consecutive days in any newspaper of general circulation, or where the value of the property
does not warrant the expense of publication, by notices posted for a like period in at least three
public places in the locality where the property is to be sold. In the event that the public auction
fails, the property may be sold at a private sale at such price as may be fixed by the same
committee or body concerned and approved by the Commission."
It is only when the public auction fails that a negotiated sale is allowed, in which case the Commission on
Audit must approve the selling price.90 The Commission on Audit implements Section 79 of the Government
Auditing Code through Circular No. 89-29691 dated January 27, 1989. This circular emphasizes that
government assets must be disposed of only through public auction, and a negotiated sale can be resorted to
only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are qualified to bid for PEA's reclaimed foreshore and
submerged alienable lands of the public domain. Private corporations are barred from bidding at the auction
sale of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on December 10, 1991. PEA imposed a
condition that the winning bidder should reclaim another 250 hectares of submerged areas to regularize the
shape of the Freedom Islands, under a 60-40 sharing of the additional reclaimed areas in favor of the winning
bidder.92 No one, however, submitted a bid. On December 23, 1994, the Government Corporate Counsel
advised PEA it could sell the Freedom Islands through negotiation, without need of another public bidding,
because of the failure of the public bidding on December 10, 1991.93
However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the additional 250
hectares still to be reclaimed, it also granted an option to AMARI to reclaim another 350 hectares. The original
JVA, a negotiated contract, enlarged the reclamation area to 750 hectares.94 The failure of public bidding on
December 10, 1991, involving only 407.84 hectares,95 is not a valid justification for a negotiated sale of 750
hectares, almost double the area publicly auctioned. Besides, the failure of public bidding happened on
December 10, 1991, more than three years before the signing of the original JVA on April 25, 1995. The
economic situation in the country had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear: "Private
corporations or associations may not hold such alienable lands of the public domain except by lease, x x x."
Even Republic Act No. 6957 ("BOT Law," for brevity), cited by PEA and AMARI as legislative authority to
sell reclaimed lands to private parties, recognizes the constitutional ban. Section 6 of RA No. 6957 states
"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance of any
infrastructure projects undertaken through the build-operate-and-transfer arrangement or any of its
variations pursuant to the provisions of this Act, the project proponent x x x may likewise be repaid
in the form of a share in the revenue of the project or other non-monetary payments, such as, but
not limited to, the grant of a portion or percentage of the reclaimed land, subject to the
constitutional requirements with respect to the ownership of the land: x x x." (Emphasis supplied)

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A private corporation, even one that undertakes the physical reclamation of a government BOT project, cannot
acquire reclaimed alienable lands of the public domain in view of the constitutional ban.
Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local
governments in land reclamation projects to pay the contractor or developer in kind consisting of a percentage
of the reclaimed land, to wit:

"While the Director of Lands has the power to review homestead patents, he may do so only so
long as the land remains part of the public domain and continues to be under his exclusive control;
but once the patent is registered and a certificate of title is issued, the land ceases to be part of the
public domain and becomes private property over which the Director of Lands has neither control
nor jurisdiction."
4. Manalo v. Intermediate Appellate Court,100 where the Court held

"Section 302. Financing, Construction, Maintenance, Operation, and Management of Infrastructure


Projects by the Private Sector. x x x
xxx
In case of land reclamation or construction of industrial estates, the repayment plan may consist of
the grant of a portion or percentage of the reclaimed land or the industrial estate constructed."
Although Section 302 of the Local Government Code does not contain a proviso similar to that of the BOT
Law, the constitutional restrictions on land ownership automatically apply even though not expressly
mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a corporate
entity, can only be paid with leaseholds on portions of the reclaimed land. If the contractor or developer is an
individual, portions of the reclaimed land, not exceeding 12 hectares96 of non-agricultural lands, may be
conveyed to him in ownership in view of the legislative authority allowing such conveyance. This is the only
way these provisions of the BOT Law and the Local Government Code can avoid a direct collision with
Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public respondent
PEA transformed such lands of the public domain to private lands." This theory is echoed by AMARI which
maintains that the "issuance of the special patent leading to the eventual issuance of title takes the subject land
away from the land of public domain and converts the property into patrimonial or private property." In short,
PEA and AMARI contend that with the issuance of Special Patent No. 3517 and the corresponding certificates
of titles, the 157.84 hectares comprising the Freedom Islands have become private lands of PEA. In support of
their theory, PEA and AMARI cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court held
"Once the patent was granted and the corresponding certificate of title was issued, the land ceased
to be part of the public domain and became private property over which the Director of Lands has
neither control nor jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared "After the registration and issuance of the certificate and duplicate certificate of title based on a
public land patent, the land covered thereby automatically comes under the operation of Republic
Act 496 subject to all the safeguards provided therein."3. Heirs of Gregorio Tengco v. Heirs of Jose
Aliwalas,99 where the Court ruled -

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents were
issued covering the same in favor of the private respondents, the said lots ceased to be part of the
public domain and, therefore, the Director of Lands lost jurisdiction over the same."
5.Republic v. Court of Appeals,101 where the Court stated
"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a land
grant to the Mindanao Medical Center, Bureau of Medical Services, Department of Health, of the
whole lot, validly sufficient for initial registration under the Land Registration Act. Such land grant
is constitutive of a 'fee simple' title or absolute title in favor of petitioner Mindanao Medical Center.
Thus, Section 122 of the Act, which governs the registration of grants or patents involving public
lands, provides that 'Whenever public lands in the Philippine Islands belonging to the Government
of the United States or to the Government of the Philippines are alienated, granted or conveyed to
persons or to public or private corporations, the same shall be brought forthwith under the operation
of this Act (Land Registration Act, Act 496) and shall become registered lands.'"
The first four cases cited involve petitions to cancel the land patents and the corresponding certificates of
titlesissued to private parties. These four cases uniformly hold that the Director of Lands has no jurisdiction
over private lands or that upon issuance of the certificate of title the land automatically comes under the
Torrens System. The fifth case cited involves the registration under the Torrens System of a 12.8-hectare public
land granted by the National Government to Mindanao Medical Center, a government unit under the
Department of Health. The National Government transferred the 12.8-hectare public land to serve as the site
for the hospital buildings and other facilities of Mindanao Medical Center, which performed a public service.
The Court affirmed the registration of the 12.8-hectare public land in the name of Mindanao Medical Center
under Section 122 of Act No. 496. This fifth case is an example of a public land being registered under Act No.
496 without the land losing its character as a property of public dominion.
In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly
government owned corporation performing public as well as proprietary functions. No patent or certificate of
title has been issued to any private party. No one is asking the Director of Lands to cancel PEA's patent or
certificates of title. In fact, the thrust of the instant petition is that PEA's certificates of title should remain with
PEA, and the land covered by these certificates, being alienable lands of the public domain, should not be sold
to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public
ownership of the land. Registration is not a mode of acquiring ownership but is merely evidence of ownership
previously conferred by any of the recognized modes of acquiring ownership. Registration does not give the
registrant a better right than what the registrant had prior to the registration.102 The registration of lands of the
public domain under the Torrens system, by itself, cannot convert public lands into private lands.103
Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land
of the public domain automatically becomes private land cannot apply to government units and entities like
PEA. The transfer of the Freedom Islands to PEA was made subject to the provisions of CA No. 141 as
expressly stated in Special Patent No. 3517 issued by then President Aquino, to wit:

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"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and in
conformity with the provisions of Presidential Decree No. 1084, supplemented by Commonwealth
Act No. 141, as amended, there are hereby granted and conveyed unto the Public Estates Authority
the aforesaid tracts of land containing a total area of one million nine hundred fifteen thousand
eight hundred ninety four (1,915,894) square meters; the technical description of which are hereto
attached and made an integral part hereof." (Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No. 1084.
Section 60 of CA No. 141 prohibits, "except when authorized by Congress," the sale of alienable lands of the
public domain that are transferred to government units or entities. Section 60 of CA No. 141 constitutes, under
Section 44 of PD No. 1529, a "statutory lien affecting title" of the registered land even if not annotated on the
certificate of title.104 Alienable lands of the public domain held by government entities under Section 60 of CA
No. 141 remain public lands because they cannot be alienated or encumbered unless Congress passes a law
authorizing their disposition. Congress, however, cannot authorize the sale to private corporations of reclaimed
alienable lands of the public domain because of the constitutional ban. Only individuals can benefit from such
law.
The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141 does not
automatically convert alienable lands of the public domain into private or patrimonial lands. The alienable
lands of the public domain must be transferred to qualified private parties, or to government entities not tasked
to dispose of public lands, before these lands can become private or patrimonial lands. Otherwise, the
constitutional ban will become illusory if Congress can declare lands of the public domain as private or
patrimonial lands in the hands of a government agency tasked to dispose of public lands. This will allow
private corporations to acquire directly from government agencies limitless areas of lands which, prior to such
law, are concededly public lands.
Under EO No. 525, PEA became the central implementing agency of the National Government to reclaim
foreshore and submerged areas of the public domain. Thus, EO No. 525 declares that
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation
Projects
Whereas, there are several reclamation projects which are ongoing or being proposed to be
undertaken in various parts of the country which need to be evaluated for consistency with national
programs;
Whereas, there is a need to give further institutional support to the Government's declared policy to
provide for a coordinated, economical and efficient reclamation of lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited to the
National Government or any person authorized by it under proper contract;
Whereas, a central authority is needed to act on behalf of the National Government which shall
ensure a coordinated and integrated approach in the reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a government
corporation to undertake reclamation of lands and ensure their maximum utilization in
promoting public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to
reorganize the national government including the transfer, abolition, or merger of functions and
offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me by the Constitution and pursuant to Presidential Decree No. 1416, do hereby
order and direct the following:
Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating,
directing, and coordinating all reclamation projects for and on behalf of the National
Government. All reclamation projects shall be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a proper contract executed by it with any
person or entity; Provided, that, reclamation projects of any national government agency or entity
authorized under its charter shall be undertaken in consultation with the PEA upon approval of the
President.
x x x ."
As the central implementing agency tasked to undertake reclamation projects nationwide, with authority to sell
reclaimed lands, PEA took the place of DENR as the government agency charged with leasing or selling
reclaimed lands of the public domain. The reclaimed lands being leased or sold by PEA are not private lands,
in the same manner that DENR, when it disposes of other alienable lands, does not dispose of private lands but
alienable lands of the public domain. Only when qualified private parties acquire these lands will the lands
become private lands. In the hands of the government agency tasked and authorized to dispose of alienable
of disposable lands of the public domain, these lands are still public, not private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold lands of the public domain" as well as "any
and all kinds of lands." PEA can hold both lands of the public domain and private lands. Thus, the mere fact
that alienable lands of the public domain like the Freedom Islands are transferred to PEA and issued land
patents or certificates of title in PEA's name does not automatically make such lands private.
To allow vast areas of reclaimed lands of the public domain to be transferred to PEA as private lands will
sanction a gross violation of the constitutional ban on private corporations from acquiring any kind of
alienable land of the public domain. PEA will simply turn around, as PEA has now done under the Amended
JVA, and transfer several hundreds of hectares of these reclaimed and still to be reclaimed lands to a single
private corporation in only one transaction. This scheme will effectively nullify the constitutional ban in
Section 3, Article XII of the 1987 Constitution which was intended to diffuse equitably the ownership of
alienable lands of the public domain among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of the public domain since PEA
can "acquire x x x any and all kinds of lands." This will open the floodgates to corporations and even
individuals acquiring hundreds of hectares of alienable lands of the public domain under the guise that in the
hands of PEA these lands are private lands. This will result in corporations amassing huge landholdings never
before seen in this country - creating the very evil that the constitutional ban was designed to prevent. This will
completely reverse the clear direction of constitutional development in this country. The 1935 Constitution
allowed private corporations to acquire not more than 1,024 hectares of public lands. 105 The 1973 Constitution
prohibited private corporations from acquiring any kind of public land, and the 1987 Constitution has
unequivocally reiterated this prohibition.
The contention of PEA and AMARI that public lands, once registered under Act No. 496 or PD No. 1529,
automatically become private lands is contrary to existing laws. Several laws authorize lands of the public
domain to be registered under the Torrens System or Act No. 496, now PD No. 1529, without losing their

168

character as public lands. Section 122 of Act No. 496, and Section 103 of PD No. 1529, respectively, provide
as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands belonging to the x x x Government of
the Philippine Islands are alienated, granted, or conveyed to persons or the public or private
corporations, the same shall be brought forthwith under the operation of this Act and shall become
registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever public land is by the Government alienated,
granted or conveyed to any person, the same shall be brought forthwith under the operation of this
Decree." (Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person" in Section 103 of PD No. 1529 includes
conveyances of public lands to public corporations.
Alienable lands of the public domain "granted, donated, or transferred to a province, municipality, or branch or
subdivision of the Government," as provided in Section 60 of CA No. 141, may be registered under the Torrens
System pursuant to Section 103 of PD No. 1529. Such registration, however, is expressly subject to the
condition in Section 60 of CA No. 141 that the land "shall not be alienated, encumbered or otherwise
disposed of in a manner affecting its title, except when authorized by Congress." This provision refers to
government reclaimed, foreshore and marshy lands of the public domain that have been titled but still cannot
be alienated or encumbered unless expressly authorized by Congress. The need for legislative authority
prevents the registered land of the public domain from becoming private land that can be disposed of to
qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands of the public domain may be registered
under the Torrens System. Section 48, Chapter 12, Book I of the Code states
"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government
is authorized by law to be conveyed, the deed of conveyance shall be executed in behalf of the
government by the following:
(1) x x x
(2) For property belonging to the Republic of the Philippines, but titled in the name of any
political subdivision or of any corporate agency or instrumentality, by the executive head of the
agency or instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for expansion of a public wharf may be titled in
the name of a government corporation regulating port operations in the country. Private property purchased by
the National Government for expansion of an airport may also be titled in the name of the government agency
tasked to administer the airport. Private property donated to a municipality for use as a town plaza or public
school site may likewise be titled in the name of the municipality.106 All these properties become properties of
the public domain, and if already registered under Act No. 496 or PD No. 1529, remain registered land. There
is no requirement or provision in any existing law for the de-registration of land from the Torrens System.

Private lands taken by the Government for public use under its power of eminent domain become
unquestionably part of the public domain. Nevertheless, Section 85 of PD No. 1529 authorizes the Register of
Deeds to issue in the name of the National Government new certificates of title covering such expropriated
lands. Section 85 of PD No. 1529 states
"Sec. 85. Land taken by eminent domain. Whenever any registered land, or interest therein, is
expropriated or taken by eminent domain, the National Government, province, city or municipality,
or any other agency or instrumentality exercising such right shall file for registration in the proper
Registry a certified copy of the judgment which shall state definitely by an adequate description,
the particular property or interest expropriated, the number of the certificate of title, and the nature
of the public use. A memorandum of the right or interest taken shall be made on each certificate of
title by the Register of Deeds, and where the fee simple is taken, a new certificate shall be issued
in favor of the National Government, province, city, municipality, or any other agency or
instrumentality exercising such right for the land so taken. The legal expenses incident to the
memorandum of registration or issuance of a new certificate of title shall be for the account of the
authority taking the land or interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are not exclusively private or patrimonial
lands. Lands of the public domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to AMARI of the Freedom Islands or of the
lands to be reclaimed from submerged areas of Manila Bay. In the words of AMARI, the Amended JVA "is not
a sale but a joint venture with a stipulation for reimbursement of the original cost incurred by PEA for the
earlier reclamation and construction works performed by the CDCP under its 1973 contract with the Republic."
Whether the Amended JVA is a sale or a joint venture, the fact remains that the Amended JVA requires PEA to
"cause the issuance and delivery of the certificates of title conveying AMARI's Land Share in the name of
AMARI."107
This stipulation still contravenes Section 3, Article XII of the 1987 Constitution which provides that private
corporations "shall not hold such alienable lands of the public domain except by lease." The transfer of title
and ownership to AMARI clearly means that AMARI will "hold" the reclaimed lands other than by lease. The
transfer of title and ownership is a "disposition" of the reclaimed lands, a transaction considered a sale or
alienation under CA No. 141,108 the Government Auditing Code,109 and Section 3, Article XII of the 1987
Constitution.
The Regalian doctrine is deeply implanted in our legal system. Foreshore and submerged areas form part of the
public domain and are inalienable. Lands reclaimed from foreshore and submerged areas also form part of the
public domain and are also inalienable, unless converted pursuant to law into alienable or disposable lands of
the public domain. Historically, lands reclaimed by the government are sui generis, not available for sale to
private parties unlike other alienable public lands. Reclaimed lands retain their inherent potential as areas for
public use or public service. Alienable lands of the public domain, increasingly becoming scarce natural
resources, are to be distributed equitably among our ever-growing population. To insure such equitable
distribution, the 1973 and 1987 Constitutions have barred private corporations from acquiring any kind of
alienable land of the public domain. Those who attempt to dispose of inalienable natural resources of the State,
or seek to circumvent the constitutional ban on alienation of lands of the public domain to private corporations,
do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the Freedom Islands, now covered by
certificates of title in the name of PEA, are alienable lands of the public domain. PEA may lease
these lands to private corporations but may not sell or transfer ownership of these lands to private

169

corporations. PEA may only sell these lands to Philippine citizens, subject to the ownership
limitations in the 1987 Constitution and existing laws.
2. The 592.15 hectares of submerged areas of Manila Bay remain inalienable natural resources of
the public domain until classified as alienable or disposable lands open to disposition and declared
no longer needed for public service. The government can make such classification and declaration
only after PEA has reclaimed these submerged areas. Only then can these lands qualify as
agricultural lands of the public domain, which are the only natural resources the government can
alienate. In their present state, the 592.15 hectares of submerged areas are inalienable and outside
the commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a private corporation, ownership of 77.34
hectares110 of the Freedom Islands, such transfer is void for being contrary to Section 3, Article XII
of the 1987 Constitution which prohibits private corporations from acquiring any kind of alienable
land of the public domain.
4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares 111 of still
submerged areas of Manila Bay, such transfer is void for being contrary to Section 2, Article XII of
the 1987 Constitution which prohibits the alienation of natural resources other than agricultural
lands of the public domain. PEA may reclaim these submerged areas. Thereafter, the government
can classify the reclaimed lands as alienable or disposable, and further declare them no longer
needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain
to AMARI will be void in view of Section 3, Article XII of the 1987 Constitution which prohibits
private corporations from acquiring any kind of alienable land of the public domain.

FIRST DIVISION

G.R. No. 115381 December 23, 1994


KILUSANG MAYO UNO LABOR CENTER, petitioner,
vs.
HON. JESUS B. GARCIA, JR., the LAND TRANSPORTATION FRANCHISING AND
REGULATORY BOARD, and the PROVINCIAL BUS OPERATORS ASSOCIATION OF THE
PHILIPPINES, respondents.
Potenciano A. Flores for petitioner.
Robert Anthony C. Sison, Cesar B. Brillantes and Jose Z. Galsim for private respondent.
Jose F. Miravite for movants.

KAPUNAN, J.:
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under
Article 1409112 of the Civil Code, contracts whose "object or purpose is contrary to law," or whose "object is
outside the commerce of men," are "inexistent and void from the beginning." The Court must perform its duty
to defend and uphold the Constitution, and therefore declares the Amended JVA null and void ab initio.
Seventh issue: whether the Court is the proper forum to raise the issue of whether the Amended JVA is
grossly disadvantageous to the government.
Considering that the Amended JVA is null and void ab initio, there is no necessity to rule on this last issue.
Besides, the Court is not a trier of facts, and this last issue involves a determination of factual matters.

Public utilities are privately owned and operated businesses whose service are essential to the general public.
They are enterprises which specially cater to the needs of the public and conduce to their comfort and
convenience. As such, public utility services are impressed with public interest and concern. The same is true
with respect to the business of common carrier which holds such a peculiar relation to the public interest that
there is superinduced upon it the right of public regulation when private properties are affected with public
interest, hence, they cease to be juris privati only. When, therefore, one devotes his property to a use in which
the public has an interest, he, in effect grants to the public an interest in that use, and must submit to the
control by the public for the common good, to the extent of the interest he has thus created. 1

WHEREFORE, the petition is GRANTED. The Public Estates Authority and Amari Coastal Bay Development
Corporation are PERMANENTLY ENJOINED from implementing the Amended Joint Venture Agreement
which is hereby declared NULL and VOID ab initio.

An abdication of the licensing and regulatory government agencies of their functions as the instant petition
seeks to show, is indeed lamentable. Not only is it an unsound administrative policy but it is inimical to public
trust and public interest as well.

SO ORDERED.

The instant petition for certiorari assails the constitutionality and validity of certain memoranda, circulars
and/or orders of the Department of Transportation and Communications (DOTC) and the Land Transportation
Franchising and Regulatory Board LTFRB) 2 which, among others, (a) authorize provincial bus and jeepney
operators to increase or decrease the prescribed transportation fares without application therefor with the
LTFRB and without hearing and approval thereof by said agency in violation of Sec. 16(c) of Commonwealth
Act No. 146, as amended, otherwise known as the Public Service Act, and in derogation of LTFRB's duty to
fix and determine just and reasonable fares by delegating that function to bus operators, and (b) establish a
presumption of public need in favor of applicants for certificates of public convenience (CPC) and place on the
oppositor the burden of proving that there is no need for the proposed service, in patent violation not only of
Sec. 16(c) of CA 146, as amended, but also of Sec. 20(a) of the same Act mandating that fares should be "just

KMU LABOR CENTER VS GARCIA


Republic of the Philippines
SUPREME COURT
Manila

170

and reasonable." It is, likewise, violative of the Rules of Court which places upon each party the burden to
prove his own affirmative allegations. 3 The offending provisions contained in the questioned issuances pointed
out by petitioner, have resulted in the introduction into our highways and thoroughfares thousands of old and
smoke-belching buses, many of which are right-hand driven, and have exposed our consumers to the burden of
spiraling costs of public transportation without hearing and due process.
The following memoranda, circulars and/or orders are sought to be nullified by the instant petition, viz: (a)
DOTC Memorandum Order 90-395, dated June 26, 1990 relative to the implementation of a fare range scheme
for provincial bus services in the country; (b) DOTC Department Order No.
92-587, dated March 30, 1992, defining the policy framework on the regulation of transport services; (c)
DOTC Memorandum dated October 8, 1992, laying down rules and procedures to implement Department
Order No. 92-587; (d) LTFRB Memorandum Circular No. 92-009, providing implementing guidelines on the
DOTC Department Order No. 92-587; and (e) LTFRB Order dated March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued Memorandum Circular No. 90-395 to
then LTFRB Chairman, Remedios A.S. Fernando allowing provincial bus operators to charge passengers rates
within a range of 15% above and 15% below the LTFRB official rate for a period of one (1) year. The text of
the memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts and the priorities
set out in the Medium-Term Philippine Development Plan (MTPDP) 1987 1992) is
the liberalization of regulations in the transport sector. Along this line, the Government
intends to move away gradually from regulatory policies and make progress towards
greater reliance on free market forces.
Based on several surveys and observations, bus companies are already charging
passenger rates above and below the official fare declared by LTFRB on many
provincial routes. It is in this context that some form of liberalization on public transport
fares is to be tested on a pilot basis.
In view thereof, the LTFRB is hereby directed to immediately publicize a fare range
scheme for all provincial bus routes in country (except those operating within Metro
Manila). Transport Operators shall be allowed to charge passengers within a range of
fifteen percent (15%) above and fifteen percent (15%) below the LTFRB official rate for
a period of one year.
Guidelines and procedures for the said scheme shall be prepared by LTFRB in
coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6 August 1990.
For compliance. (Emphasis ours.)

Finding the implementation of the fare range scheme "not legally feasible," Remedios A.S. Fernando
submitted the following memorandum to Oscar M. Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26 June 1990 which the
LTFRB received on 19 July 1990, directing the Board "to immediately publicize a fare
range scheme for all provincial bus routes in the country (except those operating within
Metro Manila)" that will allow operators "to charge passengers within a range of fifteen
percent (15%) above and fifteen percent (15%) below the LTFRB official rate for a
period of one year" the undersigned is respectfully adverting the Secretary's attention to
the following for his consideration:
1. Section 16(c) of the Public Service Act prescribes the following
for the fixing and determination of rates (a) the rates to be
approved should be proposed by public service operators; (b)
there should be a publication and notice to concerned or affected
parties in the territory affected; (c) a public hearing should be
held for the fixing of the rates; hence, implementation of the
proposed fare range scheme on August 6 without complying with
the requirements of the Public Service Act may not be legally
feasible.
2. To allow bus operators in the country to charge fares fifteen
(15%) above the present LTFRB fares in the wake of the
devastation, death and suffering caused by the July 16 earthquake
will not be socially warranted and will be politically unsound;
most likely public criticism against the DOTC and the LTFRB
will be triggered by the untimely motu propio implementation of
the proposal by the mere expedient of publicizing the fare range
scheme without calling a public hearing, which scheme many as
early as during the Secretary's predecessor know through
newspaper reports and columnists' comments to be Asian
Development Bank and World Bank inspired.
3. More than inducing a reduction in bus fares by fifteen percent
(15%) the implementation of the proposal will instead trigger an
upward adjustment in bus fares by fifteen percent (15%) at a time
when hundreds of thousands of people in Central and Northern
Luzon, particularly in Central Pangasinan, La Union, Baguio City,
Nueva Ecija, and the Cagayan Valley are suffering from the
devastation and havoc caused by the recent earthquake.
4. In lieu of the said proposal, the DOTC with its agencies
involved in public transportation can consider measures and
reforms in the industry that will be socially uplifting, especially
for the people in the areas devastated by the recent earthquake.

171

In view of the foregoing considerations, the undersigned respectfully suggests that the
implementation of the proposed fare range scheme this year be further studied and
evaluated.
On December 5, 1990, private respondent Provincial Bus Operators Association of the Philippines, Inc.
(PBOAP) filed an application for fare rate increase. An across-the-board increase of eight and a half centavos
(P0.085) per kilometer for all types of provincial buses with a minimum-maximum fare range of fifteen (15%)
percent over and below the proposed basic per kilometer fare rate, with the said minimum-maximum fare
range applying only to ordinary, first class and premium class buses and a fifty-centavo (P0.50) minimum per
kilometer fare for aircon buses, was sought.
On December 6, 1990, private respondent PBOAP reduced its applied proposed fare to an across-the-board
increase of six and a half (P0.065) centavos per kilometer for ordinary buses. The decrease was due to the drop
in the expected price of diesel.
The application was opposed by the Philippine Consumers Foundation, Inc. and Perla C. Bautista alleging that
the proposed rates were exorbitant and unreasonable and that the application contained no allegation on the
rate of return of the proposed increase in rates.
On December 14, 1990, public respondent LTFRB rendered a decision granting the fare rate increase in
accordance with the following schedule of fares on a straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS. SUCCEEDING KM.
REGULAR P1.50 P0.37
STUDENT P1.15 P0.28
VISAYAS/MINDANAO
REGULAR P1.60 P0.375
STUDENT P1.20 P0.285
FIRST CLASS (PER KM.)
LUZON P0.385
VISAYAS/
MINDANAO P0.395
PREMIERE CLASS (PER KM.)
LUZON P0.395
VISAYAS/
MINDANAO P0.405

On March 30, 1992, then Secretary of the Department of Transportation and Communications Pete Nicomedes
Prado issued Department Order No.
92-587 defining the policy framework on the regulation of transport services. The full text of the said order is
reproduced below in view of the importance of the provisions contained therein:
WHEREAS, Executive Order No. 125 as amended, designates the Department of
Transportation and Communications (DOTC) as the primary policy, planning, regulating
and implementing agency on transportation;
WHEREAS, to achieve the objective of a viable, efficient, and dependable
transportation system, the transportation regulatory agencies under or attached to the
DOTC have to harmonize their decisions and adopt a common philosophy and direction;
WHEREAS, the government proposes to build on the successful liberalization measures
pursued over the last five years and bring the transport sector nearer to a balanced longer
term regulatory framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the DOTC, the
following policies and principles in the economic regulation of land, air, and water
transportation services are hereby adopted:
1. Entry into and exit out of the industry. Following the Constitutional dictum against
monopoly, no franchise holder shall be permitted to maintain a monopoly on any route.
A minimum of two franchise holders shall be permitted to operate on any route.
The requirements to grant a certificate to operate, or certificate of public convenience,
shall be: proof of Filipino citizenship, financial capability, public need, and sufficient
insurance cover to protect the riding public.
In determining public need, the presumption of need for a service shall be deemed in
favor of the applicant. The burden of proving that there is no need for a proposed
service shall be with the oppositor(s).
In the interest of providing efficient public transport services, the use of the "prior
operator" and the "priority of filing" rules shall be discontinued. The route measured
capacity test or other similar tests of demand for vehicle/vessel fleet on any route shall
be used only as a guide in weighing the merits of each franchise application and not as a
limit to the services offered.
Where there are limitations in facilities, such as congested road space in urban areas, or
at airports and ports, the use of demand management measures in conformity with
market principles may be considered.

AIRCON (PER KM.) P0.415. 4

172

The right of an operator to leave the industry is recognized as a business decision,


subject only to the filing of appropriate notice and following a phase-out period, to
inform the public and to minimize disruption of services.
2. Rate and Fare Setting. Freight rates shall be freed gradually from government
controls. Passenger fares shall also be deregulated, except for the lowest class of
passenger service (normally third class passenger transport) for which the government
will fix indicative or reference fares. Operators of particular services may fix their own
fares within a range 15% above and below the indicative or reference rate.
Where there is lack of effective competition for services, or on specific routes, or for the
transport of particular commodities, maximum mandatory freight rates or passenger
fares shall be set temporarily by the government pending actions to increase the level of
competition.
For unserved or single operator routes, the government shall contract such services in
the most advantageous terms to the public and the government, following public bids for
the services. The advisability of bidding out the services or using other kinds of
incentives on such routes shall be studied by the government.
3. Special Incentives and Financing for Fleet Acquisition. As a matter of policy, the
government shall not engage in special financing and incentive programs, including
direct subsidies for fleet acquisition and expansion. Only when the market situation
warrants government intervention shall programs of this type be considered. Existing
programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board, the Civil Aeronautics
Board, the Maritime Industry Authority are hereby directed to submit to the Office of
the Secretary, within forty-five (45) days of this Order, the detailed rules and procedures
for the Implementation of the policies herein set forth. In the formulation of such rules,
the concerned agencies shall be guided by the most recent studies on the subjects, such
as the Provincial Road Passenger Transport Study, the Civil Aviation Master Plan, the
Presidential Task Force on the Inter-island Shipping Industry, and the Inter-island Liner
Shipping Rate Rationalization Study.

On February 17, 1993, the LTFRB issued Memorandum Circular


No. 92-009 promulgating the guidelines for the implementation of DOTC Department Order No. 92-587. The
Circular provides, among others, the following challenged portions:
xxx xxx xxx
IV. Policy Guidelines on the Issuance of Certificate of Public Convenience.
The issuance of a Certificate of Public Convenience is determined by public need. The
presumption of public need for a service shall be deemed in favor of the applicant, while
burden of proving that there is no need for the proposed service shall be the
oppositor'(s).
xxx xxx xxx
V. Rate and Fare Setting
The control in pricing shall be liberalized to introduce price competition complementary
with the quality of service, subject to prior notice and public hearing. Fares shall not be
provisionally authorized without public hearing.
A. On the General Structure of Rates
1. The existing authorized fare range system of plus or minus 15 per cent for provincial
buses and jeepneys shall be widened to 20% and -25% limit in 1994 with the authorized
fare to be replaced by an indicative or reference rate as the basis for the expanded fare
range.
2. Fare systems for aircon buses are liberalized to cover first class and premier services.
xxx xxx xxx
(Emphasis ours).

For the compliance of all concerned. (Emphasis ours)


On October 8, 1992, public respondent Secretary of the Department of Transportation and Communications
Jesus B. Garcia, Jr. issued a memorandum to the Acting Chairman of the LTFRB suggesting swift action on the
adoption of rules and procedures to implement above-quoted Department Order No. 92-587 that laid down
deregulation and other liberalization policies for the transport sector. Attached to the said memorandum was a
revised draft of the required rules and procedures covering (i) Entry Into and Exit Out of the Industry and (ii)
Rate and Fare Setting, with comments and suggestions from the World Bank incorporated therein. Likewise,
resplendent from the said memorandum is the statement of the DOTC Secretary that the adoption of the rules
and procedures is a pre-requisite to the approval of the Economic Integration Loan from the World Bank. 5

Sometime in March, 1994, private respondent PBOAP, availing itself of the deregulation policy of the DOTC
allowing provincial bus operators to collect plus 20% and minus 25% of the prescribed fare without first
having filed a petition for the purpose and without the benefit of a public hearing, announced a fare increase of
twenty (20%) percent of the existing fares. Said increased fares were to be made effective on March 16, 1994.
On March 16, 1994, petitioner KMU filed a petition before the LTFRB opposing the upward adjustment of bus
fares.
On March 24, 1994, the LTFRB issued one of the assailed orders dismissing the petition for lack of merit. The
dispositive portion reads:

173

PREMISES CONSIDERED, this Board after considering the arguments of the parties,
hereby DISMISSES FOR LACK OF MERIT the petition filed in the above-entitled
case. This petition in this case was resolved with dispatch at the request of petitioner to
enable it to immediately avail of the legal remedies or options it is entitled under
existing laws.
SO ORDERED. 6
Hence, the instant petition for certiorari with an urgent prayer for issuance of a temporary restraining order.
The Court, on June 20, 1994, issued a temporary restraining order enjoining, prohibiting and preventing
respondents from implementing the bus fare rate increase as well as the questioned orders and memorandum
circulars. This meant that provincial bus fares were rolled back to the levels duly authorized by the LTFRB
prior to March 16, 1994. A moratorium was likewise enforced on the issuance of franchises for the operation
of buses, jeepneys, and taxicabs.
Petitioner KMU anchors its claim on two (2) grounds. First, the authority given by respondent LTFRB to
provincial bus operators to set a fare range of plus or minus fifteen (15%) percent, later increased to plus
twenty (20%) and minus twenty-five (-25%) percent, over and above the existing authorized fare without
having to file a petition for the purpose, is unconstitutional, invalid and illegal. Second, the establishment of a
presumption of public need in favor of an applicant for a proposed transport service without having to prove
public necessity, is illegal for being violative of the Public Service Act and the Rules of Court.
In its Comment, private respondent PBOAP, while not actually touching upon the issues raised by the
petitioner, questions the wisdom and the manner by which the instant petition was filed. It asserts that the
petitioner has no legal standing to sue or has no real interest in the case at bench and in obtaining the reliefs
prayed for.
In their Comment filed by the Office of the Solicitor General, public respondents DOTC Secretary Jesus B.
Garcia, Jr. and the LTFRB asseverate that the petitioner does not have the standing to maintain the instant suit.
They further claim that it is within DOTC and LTFRB's authority to set a fare range scheme and establish a
presumption of public need in applications for certificates of public convenience.
We find the instant petition impressed with merit.
At the outset, the threshold issue of locus standi must be struck. Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the definition of judicial power. Section 1 of Article VIII of the
Constitution provides:
xxx xxx xxx

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.
In Lamb v. Phipps, 7 we ruled that judicial power is the power to hear and decide causes pending between
parties who have the right to sue in the courts of law and equity. Corollary to this provision is the principle
of locus standi of a party litigant. One who is directly affected by and whose interest is immediate and
substantial in the controversy has the standing to sue. The rule therefore requires that a party must show a
personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision
so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial
powers in his behalf. 8
In the case at bench, petitioner, whose members had suffered and continue to suffer grave and irreparable
injury and damage from the implementation of the questioned memoranda, circulars and/or orders, has shown
that it has a clear legal right that was violated and continues to be violated with the enforcement of the
challenged memoranda, circulars and/or orders. KMU members, who avail of the use of buses, trains and
jeepneys everyday, are directly affected by the burdensome cost of arbitrary increase in passenger fares. They
are part of the millions of commuters who comprise the riding public. Certainly, their rights must be protected,
not neglected nor ignored.
Assuming arguendo that petitioner is not possessed of the standing to sue, this court is ready to brush aside this
barren procedural infirmity and recognize the legal standing of the petitioner in view of the transcendental
importance of the issues raised. And this act of liberality is not without judicial precedent. As early as
theEmergency Powers Cases, this Court had exercised its discretion and waived the requirement of proper
party. In the recent case of Kilosbayan, Inc., et al. v. Teofisto Guingona, Jr., et al., 9 we ruled in the same lines
and enumerated some of the cases where the same policy was adopted, viz:
. . . A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of the issues raised. In the
landmark Emergency Powers Cases, [G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No.
L-2756 (Araneta
v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de Filipinas); G.R. No. L-3055
(Guerrero v. Commissioner of Customs); and G.R. No. L-3056 (Barredo v. Commission
on Elections), 84 Phil. 368 (1949)], this Court brushed aside this technicality because
"the transcendental importance to the public of these cases demands that they be settled
promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino
vs. Cuenco, G.R. No. L-2621)." Insofar as taxpayers' suits are concerned, this Court had
declared that it "is not devoid of discretion as to whether or not it should be entertained,"
(Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it "enjoys an open discretion to
entertain the same or not." [Sanidad v. COMELEC, 73 SCRA 333 (1976)].
xxx xxx xxx
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members
of Congress, and even association of planters, and
non-profit civic organizations were allowed to initiate and prosecute actions before this

174

court to question the constitutionality or validity of laws, acts, decisions, rulings, or


orders of various government agencies or instrumentalities. Among such cases were
those assailing the constitutionality of (a) R.A. No. 3836 insofar as it allows retirement
gratuity and commutation of vacation and sick leave to Senators and Representatives
and to elective officials of both Houses of Congress (Philippine Constitution
Association, Inc. v. Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284,
issued by President Corazon C. Aquino on 25 July 1987, which allowed members of the
cabinet, their undersecretaries, and assistant secretaries to hold other government offices
or positions (Civil Liberties Union v. Executive Secretary, 194 SCRA 317 [1991]); (c)
the automatic appropriation for debt service in the General Appropriations Act
(Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A. No. 7056 on the holding of
desynchronized elections (Osmea v. Commission on Elections, 199 SCRA 750 [1991]);
(e) P.D. No. 1869 (the charter of the Philippine Amusement and Gaming Corporation)
on the ground that it is contrary to morals, public policy, and order (Basco v. Philippine
Amusement and Gaming Corp., 197 SCRA 52 [1991]); and (f) R.A. No. 6975,
establishing the Philippine National Police. (Carpio v. Executive Secretary, 206 SCRA
290 [1992]).
Other cases where we have followed a liberal policy regarding locus standi include
those attacking the validity or legality of (a) an order allowing the importation of rice in
the light of the prohibition imposed by R.A. No. 3452 (Iloilo Palay and Corn Planters
Association, Inc. v. Feliciano, 13 SCRA 377 [1965]; (b) P.D. Nos. 991 and 1033 insofar
as they proposed amendments to the Constitution and P.D. No. 1031 insofar as it
directed the COMELEC to supervise, control, hold, and conduct the referendumplebiscite on 16 October 1976 (Sanidad v. Commission on Elections, supra); (c) the
bidding for the sale of the 3,179 square meters of land at Roppongi, Minato-ku, Tokyo,
Japan (Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the approval without hearing by the
Board of Investments of the amended application of the Bataan Petrochemical
Corporation to transfer the site of its plant from Bataan to Batangas and the validity of
such transfer and the shift of feedstock from naphtha only to naphtha and/or liquefied
petroleum gas (Garcia v. Board of Investments, 177 SCRA 374 [1989]; Garcia v. Board
of Investments, 191 SCRA 288 [1990]); (e) the decisions, orders, rulings, and
resolutions of the Executive Secretary, Secretary of Finance, Commissioner of Internal
Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board
exempting the National Power Corporation from indirect tax and duties (Maceda v.
Macaraig, 197 SCRA 771 [1991]); (f) the orders of the Energy Regulatory Board of 5
and 6 December 1990 on the ground that the hearings conducted on the second
provisional increase in oil prices did not allow the petitioner substantial crossexamination; (Maceda v. Energy Regulatory Board, 199 SCRA 454 [1991]); (g)
Executive Order No. 478 which levied a special duty of P0.95 per liter of imported oil
products (Garcia v. Executive Secretary, 211 SCRA 219 [1992]); (h) resolutions of the
Commission on Elections concerning the apportionment, by district, of the number of
elective members of Sanggunians (De Guia vs. Commission on Elections, 208 SCRA
420 [1992]); and (i) memorandum orders issued by a Mayor affecting the Chief of
Police of Pasay City (Pasay Law and Conscience Union, Inc. v. Cuneta, 101 SCRA 662
[1980]).

In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275 [1975]), this
Court, despite its unequivocal ruling that the petitioners therein had no personality to
file the petition, resolved nevertheless to pass upon the issues raised because of the farreaching implications of the petition. We did no less in De Guia v. COMELEC
(Supra) where, although we declared that De Guia "does not appear to have locus
standi, a standing in law, a personal or substantial interest," we brushed aside the
procedural infirmity "considering the importance of the issue involved, concerning as it
does the political exercise of qualified voters affected by the apportionment, and
petitioner alleging abuse of discretion and violation of the Constitution by respondent."
Now on the merits of the case.
On the fare range scheme.
Section 16(c) of the Public Service Act, as amended, reads:
Sec. 16. Proceedings of the Commission, upon notice and hearing. The Commission
shall have power, upon proper notice and hearing in accordance with the rules and
provisions of this Act, subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, tolls, charges, classifications, or
schedules thereof, as well as commutation, mileage kilometrage, and other special rates
which shall be imposed, observed, and followed thereafter by any public
service: Provided, That the Commission may, in its discretion, approve rates proposed
by public services provisionally and without necessity of any hearing; but it shall call a
hearing thereon within thirty days thereafter, upon publication and notice to the concerns
operating in the territory affected: Provided, further, That in case the public service
equipment of an operator is used principally or secondarily for the promotion of a
private business, the net profits of said private business shall be considered in relation
with the public service of such operator for the purpose of fixing the rates. (Emphasis
ours).
xxx xxx xxx
Under the foregoing provision, the Legislature delegated to the defunct Public Service Commission
the power of fixing the rates of public services. Respondent LTFRB, the existing regulatory body
today, is likewise vested with the same under Executive Order No. 202 dated June 19, 1987.
Section 5(c) of the said executive order authorizes LTFRB "to determine, prescribe, approve and
periodically review and adjust, reasonable fares, rates and other related charges, relative to the
operation of public land transportation services provided by motorized vehicles."
Such delegation of legislative power to an administrative agency is permitted in order to adapt to the
increasing complexity of modern life. As subjects for governmental regulation multiply, so does the difficulty

175

of administering the laws. Hence, specialization even in legislation has become necessary. Given the task of
determining sensitive and delicate matters as
route-fixing and rate-making for the transport sector, the responsible regulatory body is entrusted with the
power of subordinate legislation. With this authority, an administrative body and in this case, the LTFRB, may
implement broad policies laid down in a statute by "filling in" the details which the Legislature may neither
have time or competence to provide. However, nowhere under the aforesaid provisions of law are the
regulatory bodies, the PSC and LTFRB alike, authorized to delegate that power to a common carrier, a
transport operator, or other public service.
In the case at bench, the authority given by the LTFRB to the provincial bus operators to set a fare range over
and above the authorized existing fare, is illegal and invalid as it is tantamount to an undue delegation of
legislative authority. Potestas delegata non delegari potest. What has been delegated cannot be delegated. This
doctrine is based on the ethical principle that such a delegated power constitutes not only a right but a duty to
be performed by the delegate through the instrumentality of his own judgment and not through the intervening
mind of another. 10 A further delegation of such power would indeed constitute a negation of the duty in
violation of the trust reposed in the delegate mandated to discharge it directly. 11 The policy of allowing the
provincial bus operators to change and increase their fares at will would result not only to a chaotic situation
but to an anarchic state of affairs. This would leave the riding public at the mercy of transport operators who
may increase fares every hour, every day, every month or every year, whenever it pleases them or whenever
they deem it "necessary" to do so. In Panay Autobus Co. v. Philippine Railway Co., 12 where respondent
Philippine Railway Co. was granted by the Public Service Commission the authority to change its freight rates
at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by law to delegate to
the Philippine Railway Co. the power of altering its freight rates whenever it should find
it necessary to do so in order to meet the competition of road trucks and autobuses, or
to change its freight rates at will, or to regard its present rates as maximum rates, and
to fix lower rates whenever in the opinion of the Philippine Railway Co. it would be to
its advantage to do so.
The mere recital of the language of the application of the Philippine Railway Co. is
enough to show that it is untenable. The Legislature has delegated to the Public Service
Commission the power of fixing the rates of public services, but it has not authorized the
Public Service Commission to delegate that power to a common carrier or other public
service. The rates of public services like the Philippine Railway Co. have been approved
or fixed by the Public Service Commission, and any change in such rates must be
authorized or approved by the Public Service Commission after they have been shown
to be just and reasonable. The public service may, of course, propose new rates, as the
Philippine Railway Co. did in case No. 31827, but it cannot lawfully make said new
rates effective without the approval of the Public Service Commission, and the Public
Service Commission itself cannot authorize a public service to enforce new rates
without the prior approval of said rates by the commission. The commission must
approve new rates when they are submitted to it, if the evidence shows them to be just
and reasonable, otherwise it must disapprove them. Clearly, the commission cannot
determine in advance whether or not the new rates of the Philippine Railway Co. will be
just and reasonable, because it does not know what those rates will be.

In the present case the Philippine Railway Co. in effect asked for permission to change
its freight rates at will. It may change them every day or every hour, whenever it deems
it necessary to do so in order to meet competition or whenever in its opinion it would be
to its advantage. Such a procedure would create a most unsatisfactory state of affairs and
largely defeat the purposes of the public service law. 13 (Emphasis ours).
One veritable consequence of the deregulation of transport fares is a compounded fare. If transport operators
will be authorized to impose and collect an additional amount equivalent to 20% over and above the authorized
fare over a period of time, this will unduly prejudice a commuter who will be made to pay a fare that has been
computed in a manner similar to those of compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized provincial bus operators to collect a
thirty-seven (P0.37) centavo per kilometer fare for ordinary buses. At the same time, they were allowed to
impose and collect a fare range of plus or minus 15% over the authorized rate. Thus P0.37 centavo per
kilometer authorized fare plus P0.05 centavos (which is 15% of P0.37 centavos) is equivalent to P0.42
centavos, the allowed rate in 1990. Supposing the LTFRB grants another five (P0.05) centavo increase per
kilometer in 1994, then, the base or reference for computation would have to be P0.47 centavos (which is
P0.42 + P0.05 centavos). If bus operators will exercise their authority to impose an additional 20% over and
above the authorized fare, then the fare to be collected shall amount to P0.56 (that is, P0.47 authorized LTFRB
rate plus 20% of P0.47 which is P0.29). In effect, commuters will be continuously subjected, not only to a
double fare adjustment but to a compounding fare as well. On their part, transport operators shall enjoy a
bigger chunk of the pie. Aside from fare increase applied for, they can still collect an additional amount by
virtue of the authorized fare range. Mathematically, the situation translates into the following:
Year** LTFRB authorized Fare Range Fare to be
rate*** collected per
kilometer
1990 P0.37 15% (P0.05) P0.42
1994 P0.42 + 0.05 = 0.47 20% (P0.09) P0.56
1998 P0.56 + 0.05 = 0.61 20% (P0.12) P0.73
2002 P0.73 + 0.05 = 0.78 20% (P0.16) P0.94
Moreover, rate making or rate fixing is not an easy task. It is a delicate and sensitive government function that
requires dexterity of judgment and sound discretion with the settled goal of arriving at a just and reasonable
rate acceptable to both the public utility and the public. Several factors, in fact, have to be taken into
consideration before a balance could be achieved. A rate should not be confiscatory as would place an operator
in a situation where he will continue to operate at a loss. Hence, the rate should enable public utilities to
generate revenues sufficient to cover operational costs and provide reasonable return on the investments. On
the other hand, a rate which is too high becomes discriminatory. It is contrary to public interest. A rate,
therefore, must be reasonable and fair and must be affordable to the end user who will utilize the services.
Given the complexity of the nature of the function of rate-fixing and its far-reaching effects on millions of
commuters, government must not relinquish this important function in favor of those who would benefit and
profit from the industry. Neither should the requisite notice and hearing be done away with. The people,
represented by reputable oppositors, deserve to be given full opportunity to be heard in their opposition to any
fare increase.

176

The present administrative procedure, 14 to our mind, already mirrors an orderly and satisfactory arrangement
for all parties involved. To do away with such a procedure and allow just one party, an interested party at that,
to determine what the rate should be, will undermine the right of the other parties to due process. The purpose
of a hearing is precisely to determine what a just and reasonable rate is. 15 Discarding such procedural and
constitutional right is certainly inimical to our fundamental law and to public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization granted by the LTFRB for the operation of land
transportation services for public use as required by law. Pursuant to Section 16(a) of the Public Service Act, as
amended, the following requirements must be met before a CPC may be granted, to wit: (i) the applicant must
be a citizen of the Philippines, or a corporation or co-partnership, association or joint-stock company
constituted and organized under the laws of the Philippines, at least 60 per centum of its stock or paid-up
capital must belong entirely to citizens of the Philippines; (ii) the applicant must be financially capable of
undertaking the proposed service and meeting the responsibilities incident to its operation; and (iii) the
applicant must prove that the operation of the public service proposed and the authorization to do business
will promote the public interest in a proper and suitable manner. It is understood that there must be proper
notice and hearing before the PSC can exercise its power to issue a CPC.
While adopting in toto the foregoing requisites for the issuance of a CPC, LTFRB Memorandum Circular No.
92-009, Part IV, provides for yet incongruous and contradictory policy guideline on the issuance of a CPC. The
guidelines states:
The issuance of a Certificate of Public Convenience is determined by public need. The
presumption of public need for a service shall be deemed in favor of the applicant, while
the burden of proving that there is no need for the proposed service shall be the
oppositor's. (Emphasis ours).
The above-quoted provision is entirely incompatible and inconsistent with Section 16(c)(iii) of the Public
Service Act which requires that before a CPC will be issued, the applicant must prove by proper notice and
hearing that the operation of the public service proposed will promote public interest in a proper and suitable
manner. On the contrary, the policy guideline states that the presumption of public need for a public service
shall be deemed in favor of the applicant. In case of conflict between a statute and an administrative order, the
former must prevail.
By its terms, public convenience or necessity generally means something fitting or suited to the public
need. 16 As one of the basic requirements for the grant of a CPC, public convenience and necessity exists when
the proposed facility or service meets a reasonable want of the public and supply a need which the existing
facilities do not adequately supply. The existence or
non-existence of public convenience and necessity is therefore a question of fact that must be established by
evidence, real and/or testimonial; empirical data; statistics and such other means necessary, in a public hearing
conducted for that purpose. The object and purpose of such procedure, among other things, is to look out for,
and protect, the interests of both the public and the existing transport operators.

public. 17 Basic convenience is the primary consideration for which a CPC is issued, and that fact alone must be
consistently borne in mind. Also, existing operators in subject routes must be given an opportunity to offer
proof and oppose the application. Therefore, an applicant must, at all times, be required to prove his capacity
and capability to furnish the service which he has undertaken to
render. 18 And all this will be possible only if a public hearing were conducted for that purpose.
Otherwise stated, the establishment of public need in favor of an applicant reverses well-settled and
institutionalized judicial, quasi-judicial and administrative procedures. It allows the party who initiates the
proceedings to prove, by mere application, his affirmative allegations. Moreover, the offending provisions of
the LTFRB memorandum circular in question would in effect amend the Rules of Court by adding another
disputable presumption in the enumeration of 37 presumptions under Rule 131, Section 5 of the Rules of
Court. Such usurpation of this Court's authority cannot be countenanced as only this Court is mandated by law
to promulgate rules concerning pleading, practice and procedure. 19
Deregulation, while it may be ideal in certain situations, may not be ideal at all in our country given the
present circumstances. Advocacy of liberalized franchising and regulatory process is tantamount to an
abdication by the government of its inherent right to exercise police power, that is, the right of government to
regulate public utilities for protection of the public and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue administrative orders to regulate the
transport sector, we find that they committed grave abuse of discretion in issuing DOTC Department Order
No. 92-587 defining the policy framework on the regulation of transport services and LTFRB Memorandum
Circular No. 92-009 promulgating the implementing guidelines on DOTC Department Order No. 92-587, the
said administrative issuances being amendatory and violative of the Public Service Act and the Rules of Court.
Consequently, we rule that the twenty (20%) per centum fare increase imposed by respondent PBOAP on
March 16, 1994 without the benefit of a petition and a public hearing is null and void and of no force and
effect. No grave abuse of discretion however was committed in the issuance of DOTC Memorandum Order
No. 90-395 and DOTC Memorandum dated October 8, 1992, the same being merely internal communications
between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the challenged
administrative issuances and orders, namely: DOTC Department Order No. 92-587, LTFRB Memorandum
Circular
No. 92-009, and the order dated March 24, 1994 issued by respondent LTFRB are hereby DECLARED
contrary to law and invalid insofar as they affect provisions therein (a) delegating to provincial bus and
jeepney operators the authority to increase or decrease the duly prescribed transportation fares; and (b) creating
a presumption of public need for a service in favor of the applicant for a certificate of public convenience and
placing the burden of proving that there is no need for the proposed service to the oppositor.
The Temporary Restraining Order issued on June 20, 1994 is hereby MADE PERMANENT insofar as it
enjoined the bus fare rate increase granted under the provisions of the aforementioned administrative circulars,
memoranda and/or orders declared invalid.
No pronouncement as to costs.

Verily, the power of a regulatory body to issue a CPC is founded on the condition that after full-dress hearing
and investigation, it shall find, as a fact, that the proposed operation is for the convenience of the

SO ORDERED.

177

As noted in its title, R.A. No. 7227 created public respondent Bases Conversion and Development
Authority[2] (BCDA), vesting it with powers pertaining to the multifarious aspects of carrying out the ultimate
objective of utilizing the base areas in accordance with the declared government policy.

JOHN HAY PAC VS LIM


EN BANC

R.A. No. 7227 likewise created the Subic Special Economic [and Free Port] Zone (Subic SEZ) the
metes and bounds of which were to be delineated in a proclamation to be issued by the President of the
Philippines.[3]

[G. R. No. 119775. October 24, 2003]

R.A. No. 7227 granted the Subic SEZ incentives ranging from tax and duty-free importations,
exemption of businesses therein from local and national taxes, to other hallmarks of a liberalized financial and
business climate.[4]

JOHN HAY PEOPLES ALTERNATIVE COALITION, MATEO CARIO FOUNDATION INC.,


CENTER FOR ALTERNATIVE SYSTEMS FOUNDATION INC., REGINA VICTORIA A.
BENAFIN REPRESENTED AND JOINED BY HER MOTHER MRS. ELISA BENAFIN,
IZABEL M. LUYK REPRESENTED AND JOINED BY HER MOTHER MRS. REBECCA
MOLINA LUYK, KATHERINE PE REPRESENTED AND JOINED BY HER MOTHER
ROSEMARIE G. PE, SOLEDAD S. CAMILO, ALICIA C. PACALSO ALIAS KEVAB,
BETTY I. STRASSER, RUBY C. GIRON, URSULA C. PEREZ ALIAS BA-YAY,
EDILBERTO T. CLARAVALL, CARMEN CAROMINA, LILIA G. YARANON, DIANE
MONDOC, petitioners, vs. VICTOR LIM, PRESIDENT, BASES CONVERSION
DEVELOPMENT AUTHORITY; JOHN HAY PORO POINT DEVELOPMENT
CORPORATION, CITY OF BAGUIO, TUNTEX (B.V.I.) CO. LTD., ASIAWORLD
INTERNATIONALE GROUP, INC., DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES, respondents.
DECISION
CARPIO MORALES, J.:
By the present petition for prohibition, mandamus and declaratory relief with prayer for a temporary
restraining order (TRO) and/or writ of preliminary injunction, petitioners assail, in the main, the
constitutionality of Presidential Proclamation No. 420, Series of 1994, CREATING AND DESIGNATING A
PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN [HAY] AS THE JOHN HAY
SPECIAL ECONOMIC ZONE PURSUANT TO REPUBLIC ACT NO. 7227.
Republic Act No. 7227, AN ACT ACCELERATING THE CONVERSION OF MILITARY
RESERVATIONS INTO OTHER PRODUCTIVE USES, CREATING THE BASES CONVERSION AND
DEVELOPMENT AUTHORITY FOR THIS PURPOSE, PROVIDING FUNDS THEREFOR AND FOR
OTHER PURPOSES, otherwise known as the Bases Conversion and Development Act of 1992, which was
enacted on March 13, 1992, set out the policy of the government to accelerate the sound and balanced
conversion into alternative productive uses of the former military bases under the 1947 Philippines-United
States of America Military Bases Agreement, namely, the Clark and Subic military reservations as well as their
extensions including the John Hay Station (Camp John Hay or the camp) in the City of Baguio. [1]

And R.A. No. 7227 expressly gave authority to the President to create through executive proclamation,
subject to the concurrence of the local government units directly affected, other Special Economic Zones
(SEZ) in the areas covered respectively by the Clark military reservation, the Wallace Air Station in San
Fernando, La Union, and Camp John Hay.[5]
On August 16, 1993, BCDA entered into a Memorandum of Agreement and Escrow Agreement with
private respondents Tuntex (B.V.I.) Co., Ltd (TUNTEX) and Asiaworld Internationale Group,
Inc. (ASIAWORLD), private corporations registered under the laws of the British Virgin Islands, preparatory
to the formation of a joint venture for the development of Poro Point in La Union and Camp John Hay as
premier tourist destinations and recreation centers. Four months later or on December 16, 1993, BCDA,
TUNTEX and ASIAWORD executed a Joint Venture Agreement [6] whereby they bound themselves to put up a
joint venture company known as the Baguio International Development and Management Corporation which
would lease areas within Camp John Hay and Poro Point for the purpose of turning such places into principal
tourist and recreation spots, as originally envisioned by the parties under their Memorandum of Agreement.
The Baguio City government meanwhile passed a number of resolutions in response to the actions taken
by BCDA as owner and administrator of Camp John Hay.
By Resolution[7] of September 29, 1993, the Sangguniang Panlungsod of Baguio City (the sanggunian)
officially asked BCDA to exclude all the barangays partly or totally located within Camp John Hay from the
reach or coverage of any plan or program for its development.
By a subsequent Resolution[8] dated January 19, 1994, the sanggunian sought from BCDA an
abdication, waiver or quitclaim of its ownership over the home lots being occupied by residents of nine (9)
barangays surrounding the military reservation.
Still by another resolution passed on February 21, 1994, the sanggunian adopted and submitted to
BCDA a 15-point concept for the development of Camp John Hay.[9] The sanggunians vision expressed,
among other things, a kind of development that affords protection to the environment, the making of a familyoriented type of tourist destination, priority in employment opportunities for Baguio residents and free access
to the base area, guaranteed participation of the city government in the management and operation of the camp,
exclusion of the previously named nine barangays from the area for development, and liability for local taxes
of businesses to be established within the camp.[10]

178

BCDA, TUNTEX and ASIAWORLD agreed to some, but rejected or modified the other proposals of
the sanggunian.[11] They stressed the need to declare Camp John Hay a SEZ as a condition precedent to its full
development in accordance with the mandate of R.A. No. 7227.[12]
On May 11, 1994, the sanggunian passed a resolution requesting the Mayor to order the determination
of realty taxes which may otherwise be collected from real properties of Camp John Hay. [13] The resolution was
intended to intelligently guide the sanggunian in determining its position on whether Camp John Hay be
declared a SEZ, it (the sanggunian) being of the view that such declaration would exempt the camps property
and the economic activity therein from local or national taxation.
More than a month later, however, the sanggunian passed Resolution No. 255, (Series of 1994),
seeking and supporting, subject to its concurrence, the issuance by then President Ramos of a presidential
proclamation declaring an area of 288.1 hectares of the camp as a SEZ in accordance with the provisions of
R.A. No. 7227. Together with this resolution was submitted a draft of the proposed proclamation for
consideration by the President.[15]
[14]

On July 5, 1994 then President Ramos issued Proclamation No. 420, [16] the title of which was earlier
indicated, which established a SEZ on a portion of Camp John Hay and which reads as follows:
xxx
Pursuant to the powers vested in me by the law and the resolution of concurrence by the City Council of
Baguio, I, FIDEL V. RAMOS, President of the Philippines, do hereby create and designate a portion of the
area covered by the former John Hay reservation as embraced, covered, and defined by the 1947 Military
Bases Agreement between the Philippines and the United States of America, as amended, as the John Hay
Special Economic Zone, and accordingly order:
SECTION 1. Coverage of John Hay Special Economic Zone. The John Hay Special Economic Zone shall
cover the area consisting of Two Hundred Eighty Eight and one/tenth (288.1) hectares, more or less, of the
total of Six Hundred Seventy-Seven (677) hectares of the John Hay Reservation, more or less, which have
been surveyed and verified by the Department of Environment and Natural Resources (DENR) as defined by
the following technical description:

With a combined area of TWO HUNDRED EIGHTY EIGHT AND ONE/TENTH HECTARES (288.1
hectares); Provided that the area consisting of approximately Six and two/tenth (6.2) hectares, more or less,
presently occupied by the VOA and the residence of the Ambassador of the United States, shall be considered
as part of the SEZ only upon turnover of the properties to the government of the Republic of the Philippines.
Sec. 2. Governing Body of the John Hay Special Economic Zone. Pursuant to Section 15 of Republic Act No.
7227, the Bases Conversion and Development Authority is hereby established as the governing body of the
John Hay Special Economic Zone and, as such, authorized to determine the utilization and disposition of the
lands comprising it, subject to private rights, if any, and in consultation and coordination with the City
Government of Baguio after consultation with its inhabitants, and to promulgate the necessary policies, rules,
and regulations to govern and regulate the zone thru the John Hay Poro Point Development Corporation, which
is its implementing arm for its economic development and optimum utilization.
Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to Section 5(m) and Section 15 of
Republic Act No. 7227, the John Hay Poro Point Development Corporation shall implement all necessary
policies, rules, and regulations governing the zone, including investment incentives, in consultation with
pertinent government departments. Among others, the zone shall have all the applicable incentives of the
Special Economic Zone under Section 12 of Republic Act No. 7227 and those applicable incentives granted in
the Export Processing Zones, the Omnibus Investment Code of 1987, the Foreign Investment Act of 1991, and
new investment laws that may hereinafter be enacted.
Sec. 4. Role of Departments, Bureaus, Offices, Agencies and Instrumentalities. All Heads of departments,
bureaus, offices, agencies, and instrumentalities of the government are hereby directed to give full support to
Bases Conversion and Development Authority and/or its implementing subsidiary or joint venture to facilitate
the necessary approvals to expedite the implementation of various projects of the conversion program.
Sec. 5. Local Authority. Except as herein provided, the affected local government units shall retain their basic
autonomy and identity.
Sec. 6. Repealing Clause. All orders, rules, and regulations, or parts thereof, which are inconsistent with the
provisions of this Proclamation, are hereby repealed, amended, or modified accordingly.
Sec. 7. Effectivity. This proclamation shall take effect immediately.

A parcel of land, situated in the City of Baguio, Province of Benguet, Island of Luzon, and particularly
described in survey plans Psd-131102-002639 and Ccs-131102-000030 as approved on 16 August 1993 and 26
August 1993, respectively, by the Department of Environment and Natural Resources, in detail containing :
Lot 1, Lot 2, Lot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 13, Lot 14, Lot 15, and Lot 20 of Ccs-131102-000030
-andLot 3, Lot 4, Lot 5, Lot 6, Lot 7, Lot 8, Lot 9, Lot 10, Lot 11, Lot 14, Lot 15, Lot 16, Lot 17, and Lot 18 of
Psd-131102-002639 being portions of TCT No. T-3812, LRC Rec. No. 87.

Done in the City of Manila, this 5th day of July, in the year of Our Lord, nineteen hundred and ninety-four.
The issuance of Proclamation No. 420 spawned the present petition [17] for prohibition, mandamus and
declaratory relief which was filed on April 25, 1995 challenging, in the main, its constitutionality or validity as
well as the legality of the Memorandum of Agreement and Joint Venture Agreement between public
respondent BCDA and private respondents TUNTEX and ASIAWORLD.
Petitioners allege as grounds for the allowance of the petition the following:
I. PRESIDENTIAL PROCLAMATION NO. 420, SERIES OF 1990 (sic) IN SO FAR AS IT
GRANTS TAX EXEMPTIONS IS INVALID AND ILLEGAL AS IT IS AN

179

UNCONSTITUTIONAL EXERCISE BY THE PRESIDENT OF A POWER GRANTED


ONLY TO THE LEGISLATURE.
II. PRESIDENTIAL PROCLAMATION NO. 420, IN SO FAR AS IT LIMITS THE POWERS
AND INTERFERES WITH THE AUTONOMY OF THE CITY OF BAGUIO IS INVALID,
ILLEGAL AND UNCONSTITUTIONAL.
III.

PRESIDENTIAL PROCLAMATION
NO.
420,
SERIES
OF
1994
IS
UNCONSTITUTIONAL IN THAT IT VIOLATES THE RULE THAT ALL TAXES
SHOULD BE UNIFORM AND EQUITABLE.

IV. THE MEMORANDUM OF AGREEMENT ENTERED INTO BY AND BETWEEN


PRIVATE AND PUBLIC RESPONDENTS BASES CONVERSION DEVELOPMENT
AUTHORITY HAVING BEEN ENTERED INTO ONLY BY DIRECT NEGOTIATION IS
ILLEGAL.
V. THE
TERMS
AND
CONDITIONS
OF
THE
MEMORANDUM
OF
AGREEMENT ENTERED INTO BY AND BETWEEN PRIVATE AND PUBLIC
RESPONDENT
BASES
CONVERSION
DEVELOPMENT
AUTHORITY IS (sic) ILLEGAL.
VI. THE CONCEPTUAL DEVELOPMENT PLAN OF RESPONDENTS NOT HAVING
UNDERGONE ENVIRONMENTAL IMPACT ASSESSMENT IS BEING ILLEGALLY
CONSIDERED WITHOUT A VALID ENVIRONMENTAL IMPACT ASSESSMENT.
A temporary restraining order and/or writ of preliminary injunction was prayed for to enjoin BCDA,
John Hay Poro Point Development Corporation and the city government from implementing Proclamation No.
420, and TUNTEX and ASIAWORLD from proceeding with their plan respecting Camp John Hays
development pursuant to their Joint Venture Agreement with BCDA.[18]
Public respondents, by their separate Comments, allege as moot and academic the issues raised by the
petition, the questioned Memorandum of Agreement and Joint Venture Agreement having already been deemed
abandoned by the inaction of the parties thereto prior to the filing of the petition as in fact, by letter of
November 21, 1995, BCDA formally notified TUNTEX and ASIAWORLD of the revocation of their said
agreements.[19]
In maintaining the validity of Proclamation No. 420, respondents contend that by extending to the John
Hay SEZ economic incentives similar to those enjoyed by the Subic SEZ which was established under R.A.
No. 7227, the proclamation is merely implementing the legislative intent of said law to turn the US military
bases into hubs of business activity or investment. They underscore the point that the governments policy of
bases conversion can not be achieved without extending the same tax exemptions granted by R.A. No. 7227 to
Subic SEZ to other SEZs.

Denying that Proclamation No. 420 is in derogation of the local autonomy of Baguio City or that it is
violative of the constitutional guarantee of equal protection, respondents assail petitioners lack of standing to
bring the present suit even as taxpayers and in the absence of any actual case or controversy to warrant this
Courts exercise of its power of judicial review over the proclamation.
Finally, respondents seek the outright dismissal of the petition for having been filed in disregard of the
hierarchy of courts and of the doctrine of exhaustion of administrative remedies.
Replying,[20] petitioners aver that the doctrine of exhaustion of administrative remedies finds no
application herein since they are invoking the exclusive authority of this Court under Section 21 of R.A. No.
7227 to enjoin or restrain implementation of projects for conversion of the base areas; that the established
exceptions to the aforesaid doctrine obtain in the present petition; and that they possess the standing to bring
the petition which is a taxpayers suit.
Public respondents have filed their Rejoinder[21] and the parties have filed their respective memoranda.
Before dwelling on the core issues, this Court shall first address the preliminary procedural questions
confronting the petition.
The judicial policy is and has always been that this Court will not entertain direct resort to it except
when the redress sought cannot be obtained in the proper courts, or when exceptional and compelling
circumstances warrant availment of a remedy within and calling for the exercise of this Courts primary
jurisdiction.[22] Neither will it entertain an action for declaratory relief, which is partly the nature of this
petition, over which it has no original jurisdiction.
Nonetheless, as it is only this Court which has the power under Section 21 [23] of R.A. No. 7227 to
enjoin implementation of projects for the development of the former US military reservations, the issuance of
which injunction petitioners pray for, petitioners direct filing of the present petition with it is allowed. Over
and above this procedural objection to the present suit, this Court retains full discretionary power to take
cognizance of a petition filed directly to it if compelling reasons, or the nature and importance of the issues
raised, warrant.[24] Besides, remanding the case to the lower courts now would just unduly prolong adjudication
of the issues.
The transformation of a portion of the area covered by Camp John Hay into a SEZ is not simply a reclassification of an area, a mere ascription of a status to a place. It involves turning the former US military
reservation into a focal point for investments by both local and foreign entities. It is to be made a site of
vigorous business activity, ultimately serving as a spur to the countrys long awaited economic growth. For, as
R.A. No. 7227 unequivocally declares, it is the governments policy to enhance the benefits to be derived from
the base areas in order to promote the economic and social development of Central Luzon in particular and the
country in general.[25] Like the Subic SEZ, the John Hay SEZ should also be turned into a self-sustaining,
industrial, commercial, financial and investment center.[26]
More than the economic interests at stake, the development of Camp John Hay as well as of the other
base areas unquestionably has critical links to a host of environmental and social concerns. Whatever use to
which these lands will be devoted will set a chain of events that can affect one way or another the social and
economic way of life of the communities where the bases are located, and ultimately the nation in general.

180

Underscoring the fragility of Baguio Citys ecology with its problem on the scarcity of its water supply,
petitioners point out that the local and national government are faced with the challenge of how to provide for
an ecologically sustainable, environmentally sound, equitable transition for the city in the wake of Camp John
Hays reversion to the mass of government property.[27] But that is why R.A. No. 7227 emphasizes the sound
and balanced conversion of the Clark and Subic military reservations and their extensions consistent with
ecological and environmental standards.[28] It cannot thus be gainsaid that the matter of conversion of the US
bases into SEZs, in this case Camp John Hay, assumes importance of a national magnitude.
Convinced then that the present petition embodies crucial issues, this Court assumes jurisdiction over
the petition.
As far as the questioned agreements between BCDA and TUNTEX and ASIAWORLD are concerned,
the legal questions being raised thereon by petitioners have indeed been rendered moot and academic by the
revocation of such agreements. There are, however, other issues posed by the petition, those which center on
the constitutionality of Proclamation No. 420, which have not been mooted by the said supervening event upon
application of the rules for the judicial scrutiny of constitutional cases. The issues boil down to:
(1) Whether the present petition complies with the requirements for this Courts exercise of
jurisdiction over constitutional issues;
(2) Whether Proclamation No. 420 is constitutional by providing for national and local tax
exemption within and granting other economic incentives to the John Hay Special
Economic Zone; and
(3) Whether Proclamation No. 420 is constitutional for limiting or interfering with the local
autonomy of Baguio City;
It is settled that when questions of constitutional significance are raised, the court can exercise its power
of judicial review only if the following requisites are present: (1) the existence of an actual and appropriate
case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of
judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the
case.[29]
An actual case or controversy refers to an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory.[30] The controversy needs to be definite and concrete, bearing
upon the legal relations of parties who are pitted against each other due to their adverse legal interests. [31] There
is in the present case a real clash of interests and rights between petitioners and respondents arising from the
issuance of a presidential proclamation that converts a portion of the area covered by Camp John Hay into a
SEZ, the former insisting that such proclamation contains unconstitutional provisions, the latter claiming
otherwise.
R.A. No. 7227 expressly requires the concurrence of the affected local government units to the creation
of SEZs out of all the base areas in the country.[32] The grant by the law on local government units of the right
of concurrence on the bases conversion is equivalent to vesting a legal standing on them, for it is in effect a
recognition of the real interests that communities nearby or surrounding a particular base area have in its
utilization. Thus, the interest of petitioners, being inhabitants of Baguio, in assailing the legality of

Proclamation No. 420, is personal and substantial such that they have sustained or will sustain direct injury as
a result of the government act being challenged. [33] Theirs is a material interest, an interest in issue affected by
the proclamation and not merely an interest in the question involved or an incidental interest, [34] for what is at
stake in the enforcement of Proclamation No. 420 is the very economic and social existence of the people of
Baguio City.
Petitioners locus standi parallels that of the petitioner and other residents of Bataan, specially of the
town of Limay, in Garcia v. Board of Investments[35] where this Court characterized their interest in the
establishment of a petrochemical plant in their place as actual, real, vital and legal, for it would affect not only
their economic life but even the air they breathe.
Moreover, petitioners Edilberto T. Claravall and Lilia G. Yaranon were duly elected councilors of
Baguio at the time, engaged in the local governance of Baguio City and whose duties included deciding for
and on behalf of their constituents the question of whether to concur with the declaration of a portion of the
area covered by Camp John Hay as a SEZ. Certainly then, petitioners Claravall and Yaranon, as city officials
who voted against[36] the sanggunian Resolution No. 255 (Series of 1994) supporting the issuance of the now
challenged Proclamation No. 420, have legal standing to bring the present petition.
That there is herein a dispute on legal rights and interests is thus beyond doubt. The mootness of the
issues concerning the questioned agreements between public and private respondents is of no moment.
By the mere enactment of the questioned law or the approval of the challenged act, the dispute is deemed to
have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of
the Constitution and/or the law is enough to awaken judicial duty.[37]
As to the third and fourth requisites of a judicial inquiry, there is likewise no question that they have
been complied with in the case at bar. This is an action filed purposely to bring forth constitutional issues,
ruling on which this Court must take up. Besides, respondents never raised issues with respect to these
requisites, hence, they are deemed waived.
Having cleared the way for judicial review, the constitutionality of Proclamation No. 420, as framed in
the second and third issues above, must now be addressed squarely.
The second issue refers to petitioners objection against the creation by Proclamation No. 420 of a
regime of tax exemption within the John Hay SEZ. Petitioners argue that nowhere in R. A. No. 7227 is there a
grant of tax exemption to SEZs yet to be established in base areas, unlike the grant under Section 12 thereof
of tax exemption and investment incentives to the therein established Subic SEZ. The grant of tax exemption
to the John Hay SEZ, petitioners conclude, thus contravenes Article VI, Section 28 (4) of the Constitution
which provides that No law granting any tax exemption shall be passed without the concurrence of a majority
of all the members of Congress.
Section 3 of Proclamation No. 420, the challenged provision, reads:
Sec. 3. Investment Climate in John Hay Special Economic Zone. Pursuant to Section 5(m) and Section 15 of
Republic Act No. 7227, the John Hay Poro Point Development Corporation shall implement all necessary
policies, rules, and regulations governing the zone, including investment incentives, in consultation with

181

pertinent government departments. Among others, the zone shall have all the applicable incentives of the
Special Economic Zone under Section 12 of Republic Act No. 7227 and those applicable
incentives granted in the Export Processing Zones, the Omnibus Investment Code of 1987, the Foreign
Investment Act of 1991, and new investment laws that may hereinafter be enacted. (Emphasis and
underscoring supplied)

to in Section 13 of this Act may also issue working visas renewable every two (2) years to foreign executives
and other aliens possessing highly-technical skills which no Filipino within the Subic Special Economic Zone
possesses, as certified by the Department of Labor and Employment. The names of aliens granted permanent
residence status and working visas by the Subic Bay Metropolitan Authority shall be reported to the Bureau of
Immigration and Deportation within thirty (30) days after issuance thereof;

Upon the other hand, Section 12 of R.A. No. 7227 provides:


xxx
(a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent
provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a selfsustaining, industrial, commercial, financial and investment center to generate employment opportunities in
and around the zone and to attract and promote productive foreign investments;
b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring
free flow or movement of goods and capital within, into and exported out of the Subic Special Economic Zone,
as well as provide incentives such as tax and duty free importations of raw materials, capital and equipment.
However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other
parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code
and other relevant tax laws of the Philippines;
(c) The provisions of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and
national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent
(3%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone
shall be remitted to the National Government, one percent (1%) each to the local government units affected by
the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby
established a development fund of one percent (1%) of the gross income earned by all businesses and
enterprises within the Subic Special Economic Zone to be utilized for the Municipality of Subic, and other
municipalities contiguous to be base areas. In case of conflict between national and local laws with respect to
tax exemption privileges in the Subic Special Economic Zone, the same shall be resolved in favor of the latter;
(d) No exchange control policy shall be applied and free markets for foreign exchange, gold, securities and
futures shall be allowed and maintained in theSubic Special Economic Zone;

x x x (Emphasis supplied)
It is clear that under Section 12 of R.A. No. 7227 it is only the Subic SEZ which was granted by
Congress with tax exemption, investment incentives and the like. There is no express extension of the
aforesaid benefits to other SEZs still to be created at the time via presidential proclamation.
The deliberations of the Senate confirm the exclusivity to Subic SEZ of the tax and investment
privileges accorded it under the law, as the following exchanges between our lawmakers show during the
second reading of the precursor bill of R.A. No. 7227 with respect to the investment policies that would govern
Subic SEZ which are now embodied in the aforesaid Section 12 thereof:
xxx
Senator Maceda: This is what I was talking about. We get into problems here because all of these following
policies are centered around the concept of free port. And in the main paragraph above, we have declared both
Clark and Subic as special economic zones, subject to these policies which are, in effect, a free-port
arrangement.
Senator Angara: The Gentleman is absolutely correct, Mr. President. So we must confine these policies only
to Subic.
May I withdraw then my amendment, and instead provide that THE SPECIAL ECONOMIC ZONE OF
SUBIC SHALL BE ESTABLISHED IN ACCORDANCE WITH THE FOLLOWING POLICIES. Subject to
style, Mr. President.
Thus, it is very clear that these principles and policies are applicable only to Subic as a free port.
Senator Paterno: Mr. President.

(e) The Central Bank, through the Monetary Board, shall supervise and regulate the operations of banks and
other financial institutions within the Subic Special Economic Zone;

The President: Senator Paterno is recognized.

(f) Banking and Finance shall be liberalized with the establishment of foreign currency depository units of
local commercial banks and offshore banking units of foreign banks with minimum Central Bank regulation;

Senator Paterno: I take it that the amendment suggested by Senator Angara would then prevent the
establishment of other special economic zones observing these policies.

(g) Any investor within the Subic Special Economic Zone whose continuing investment shall not be less than
Two Hundred fifty thousand dollars ($250,000), his/her spouse and dependent children under twenty-one (21)
years of age, shall be granted permanent resident status within the Subic Special Economic Zone. They shall
have freedom of ingress and egress to and from the Subic Special Economic Zone without any need of special
authorization from the Bureau of Immigration and Deportation. The Subic Bay Metropolitan Authority referred

Senator Angara: No, Mr. President, because during our short caucus, Senator Laurel raised the point that if
we give this delegation to the President to establish other economic zones, that may be an unwarranted
delegation.

182

So we agreed that we will simply limit the definition of powers and description of the zone to Subic, but that
does not exclude the possibility of creating other economic zones within the baselands.

This Court no doubt can void an act or policy of the political departments of the government on either
of two groundsinfringement of the Constitution or grave abuse of discretion.[48]

Senator Paterno: But if that amendment is followed, no other special economic zone may be created under
authority of this particular bill. Is that correct, Mr. President?

This Court then declares that the grant by Proclamation No. 420 of tax exemption and other privileges
to the John Hay SEZ is void for being violative of the Constitution. This renders it unnecessary to still dwell
on petitioners claim that the same grant violates the equal protection guarantee.

Senator Angara: Under this specific provision, yes, Mr. President. This provision now will be confined only
to Subic.[38]
x x x (Underscoring supplied).

With respect to the final issue raised by petitioners that Proclamation No. 420 is unconstitutional for
being in derogation of Baguio Citys local autonomy, objection is specifically mounted against Section 2
thereof in which BCDA is set up as the governing body of the John Hay SEZ. [49]

As gathered from the earlier-quoted Section 12 of R.A. No. 7227, the privileges given to Subic SEZ
consist principally of exemption from tariff or customs duties, national and local taxes of business entities
therein (paragraphs (b) and (c)), free market and trade of specified goods or properties (paragraph d),
liberalized banking and finance (paragraph f), and relaxed immigration rules for foreign investors (paragraph
g). Yet, apart from these, Proclamation No. 420 also makes available to the John Hay SEZ benefits existing in
other laws such as the privilege of export processing zone-based businesses of importing capital equipment
and raw materials free from taxes, duties and other restrictions; [39] tax and duty exemptions, tax holiday, tax
credit, and other incentives under the Omnibus Investments Code of 1987; [40]and the applicability to the subject
zone of rules governing foreign investments in the Philippines. [41]

Petitioners argue that there is no authority of the President to subject the John Hay SEZ to the
governance of BCDA which has just oversight functions over SEZ; and that to do so is to diminish the city
governments power over an area within its jurisdiction, hence, Proclamation No. 420 unlawfully gives the
President power of control over the local government instead of just mere supervision.

While the grant of economic incentives may be essential to the creation and success of SEZs, free trade
zones and the like, the grant thereof to the John Hay SEZ cannot be sustained. The incentives under R.A. No.
7227 are exclusive only to the Subic SEZ, hence, the extension of the same to the John Hay SEZ finds no
support therein. Neither does the same grant of privileges to the John Hay SEZ find support in the other laws
specified under Section 3 of Proclamation No. 420, which laws were already extant before the issuance of the
proclamation or the enactment of R.A. No. 7227.

(a) To own, hold and/or administer the military reservations of John Hay Air Station, Wallace Air Station,
ODonnell Transmitter Station, San Miguel Naval Communications Station, Mt. Sta. Rita Station (Hermosa,
Bataan) and those portions of Metro Manila Camps which may be transferred to it by the President;

More importantly, the nature of most of the assailed privileges is one of tax exemption. It is the
legislature, unless limited by a provision of the state constitution, that has full power to exempt any person or
corporation or class of property from taxation, its power to exempt being as broad as its power to tax. [42] Other
than Congress, the Constitution may itself provide for specific tax exemptions, [43] or local governments may
pass ordinances on exemption only from local taxes.[44]

With such broad rights of ownership and administration vested in BCDA over Camp John Hay, BCDA
virtually has control over it, subject to certain limitations provided for by law. By designating BCDA as the
governing agency of the John Hay SEZ, the law merely emphasizes or reiterates the statutory role or functions
it has been granted.

The challenged grant of tax exemption would circumvent the Constitutions imposition that a law
granting any tax exemption must have the concurrence of a majority of all the members of Congress. [45] In the
same vein, the other kinds of privileges extended to the John Hay SEZ are by tradition and usage for Congress
to legislate upon.
Contrary to public respondents suggestions, the claimed statutory exemption of the John Hay SEZ from
taxation should be manifest and unmistakable from the language of the law on which it is based; it must be
expressly granted in a statute stated in a language too clear to be mistaken. [46] Tax exemption cannot be implied
as it must be categorically and unmistakably expressed.[47]
If it were the intent of the legislature to grant to the John Hay SEZ the same tax exemption and
incentives given to the Subic SEZ, it would have so expressly provided in the R.A. No. 7227.

Petitioners arguments are bereft of merit. Under R.A. No. 7227, the BCDA is entrusted with, among
other things, the following purpose:[50]
xxx

x x x (Underscoring supplied)

The unconstitutionality of the grant of tax immunity and financial incentives as contained in the second
sentence of Section 3 of Proclamation No. 420 notwithstanding, the entire assailed proclamation cannot be
declared unconstitutional, the other parts thereof not being repugnant to law or the Constitution. The
delineation and declaration of a portion of the area covered by Camp John Hay as a SEZ was well within the
powers of the President to do so by means of a proclamation. [51] The requisite prior concurrence by the Baguio
City government to such proclamation appears to have been given in the form of a duly enacted resolution by
the sanggunian. The other provisions of the proclamation had been proven to be consistent with R.A. No.
7227.
Where part of a statute is void as contrary to the Constitution, while another part is valid, the valid
portion, if separable from the invalid, may stand and be enforced. [52] This Court finds that the other provisions
in Proclamation No. 420 converting a delineated portion of Camp John Hay into the John Hay SEZ are
separable from the invalid second sentence of Section 3 thereof, hence they stand.

183

WHEREFORE, the second sentence of Section 3 of Proclamation No. 420 is hereby declared NULL
AND VOID and is accordingly declared of no legal force and effect. Public respondents are hereby enjoined
from implementing the aforesaid void provision.
Proclamation No. 420, without the invalidated portion, remains valid and effective.
SO ORDERED.

Memorandum, the President expressed his desire to improve the peace and order situation in Metro Manila
through a more effective crime prevention program including increased police patrols. [4] The President further
stated that to heighten police visibility in the metropolis, augmentation from the AFP is necessary. [5] Invoking
his powers as Commander-in-Chief under Section 18, Article VII of the Constitution, the President directed the
AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and utilization of
the Marines to assist the PNP in preventing or suppressing criminal or lawless violence. [6] Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a
reasonable period only, until such time when the situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:

IBP VS ZAMORA

xxx
EN BANC

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

2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines
partnership in the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and
other serious threats to national security.
3. SITUATION:

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

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by
organized syndicates whose members include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas
will reduce the incidence of crimes specially those perpetrated by active or former police/military personnel.

KAPUNAN, J.:

4. MISSION:

At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary
restraining order seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada
commanding the deployment of the Philippine Marines (the Marines) to join the Philippine National Police
(the PNP) in visibility patrols around the metropolis.

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to
keep Metro Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms
of high-profile crimes especially those perpetrated by organized crime syndicates whose members include
those that are well-trained, disciplined and well-armed active or former PNP/Military personnel.

In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and
carnappings, the President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility
patrols for the purpose of crime prevention and suppression. The Secretary of National Defense, the Chief of
Staff of the Armed Forces of the Philippines (the AFP), the Chief of the PNP and the Secretary of the Interior
and Local Government were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay, formulated Letter
of Instruction 02/2000[1] (the LOI) which detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.[2] Task Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila.

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

Subsequently, the President confirmed his previous directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief. [3] In the

a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office]
and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military and
police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in addressing
crime prevention. Along this line, the role of the military and police aside from neutralizing crime syndicates is

184

to bring a wholesome atmosphere wherein delivery of basic services to the people and development is
achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their locality.

Without granting due course to the petition, the Court in a Resolution, [11] dated 25 January 2000,
required the Solicitor General to file his Comment on the petition. On 8 February 2000, the Solicitor General
submitted his Comment.

c. To ensure the effective implementation of this project, a provisional Task Force TULUNGAN shall be
organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
monitoring and assessing the security situation.

The Solicitor General vigorously defends the constitutionality of the act of the President in deploying
the Marines, contending, among others, that petitioner has no legal standing; that the question of deployment
of the Marines is not proper for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up of one police officer and one
Philippine Marine soldier, does not violate the civilian supremacy clause in the Constitution.

xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City),
Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the
NAIA and Domestic Airport.[9]
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the instant petition to annul
LOI 02/2000 and to declare the deployment of the Philippine Marines, null and void and unconstitutional,
arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE
CONSTITUTION, IN THAT:

The issues raised in the present petition are: (1) Whether or not petitioner has legal standing;
(2) Whether or not the Presidents factual determination of the necessity of calling the armed forces is subject
to judicial review; and, (3) Whether or not the calling of the armed forces to assist the PNP in joint visibility
patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character
of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise
the issues in the petition. Second, the President did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction nor did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY


REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A


CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE
XVI, SECTION 5 (4), OF THE CONSTITUTION;

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO


PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional questionis the lis
mota of the case.[12]

II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS
UNWITTINGLY MAKING THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE
UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold
the rule of law and the Constitution, the IBP questions the validity of the deployment and utilization of the
Marines to assist the PNP in law enforcement.

The IBP has not sufficiently complied with the requisites of standing in this case.
Legal standing or locus standi has been defined as a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged.[13] The term interest means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental interest. [14] The gist of the
question of standing is whether a party alleges such personal stake in the outcome of the controversy as to

185

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

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

The President did not commit grave abuse of discretion in calling out the Marines.

In the case at bar, the bone of contention concerns the factual determination of the President of the
necessity of calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this
regard, the IBP admits that the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution, specifically, the power to call
out the armed forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP questions,

As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for


court review.[22] It pertains to issues which are inherently susceptible of being decided on grounds recognized
by law. Nevertheless, the Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of cases wherein the Court hesitates to
rule on are political questions. The reason is that political questions are concerned with issues dependent upon
the wisdom, not the legality, of a particular act or measure being assailed. Moreover, the political question

186

being a function of the separation of powers, the courts will not normally interfere with the workings of
another co-equal branch unless the case shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Taada v. Cuenco[23] puts it, political questions refer to those questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of government. Thus, if an issue is clearly identified
by the text of the Constitution as matters for discretionary action by a particular branch of government or to the
people themselves then it is held to be a political question. In the classic formulation of Justice Brennan
in Baker v. Carr,[24] [p]rominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a courts
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by various departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that (T)he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be established by law. Judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
[25]
Under this definition, the Court cannot agree with the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to review. When the grant of power is qualified, conditional or
subject to limitations, the issue of whether the prescribed qualifications or conditions have been met or the
limitations respected, is justiciable - the problem being one of legality or validity, not its wisdom. [26]Moreover,
the jurisdiction to delimit constitutional boundaries has been given to this Court. [27] When political questions
are involved, the Constitution limits the determination as to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is
patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility.[29] Under this definition, a court is without power to directly decide
matters over which full discretionary authority has been delegated. But while this Court has no power to
substitute its judgment for that of Congress or of the President, it may look into the question of whether such
exercise has been made in grave abuse of discretion. [30]A showing that plenary power is granted either
department of government, may not be an obstacle to judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion,
he necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the
framers and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the
Presidents wisdom or substitute its own. However, this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion. In view of the constitutional intent to give the President full

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

187

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review
by this Court.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be released.

Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be
an actual invasion or rebellion and, (2) public safety must require it. These conditions are not required in the
case of the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion and wide latitude in the exercise of the power to call as
compared to the two other powers.

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

The reason for the difference in the treatment of the aforementioned powers highlights the intent to
grant the President the widest leeway and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual
basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual
necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since
matters considered for satisfying the same is a combination of several factors which are not always accessible
to the courts. Besides the absence of textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence
upon which the President might decide that there is a need to call out the armed forces may be of a nature not
constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather
information, some of which may be classified as highly confidential or affecting the security of the state. In the
exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to
avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to
prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at
all. Such a scenario is not farfetched when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country. The determination of the necessity for the
calling out power if subjected to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary restraining order every time it is
exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief
of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in
order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the Presidents exercise of judgment deserves to be accorded
respect from this Court.
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, [V]iolent crimes like bank/store robberies, holdups, kidnappings
and carnappings continue to occur in Metro Manila... [35] We do not doubt the veracity of the Presidents
assessment of the situation, especially in the light of present developments. The Court takes judicial notice of
the recent bombings perpetrated by lawless elements in the shopping malls, public utilities, and other public
places. These are among the areas of deployment described in the LOI 2000. Considering all these facts, we
hold that the President has sufficient factual basis to call for military aid in law enforcement and in the exercise
of this constitutional power.

188

The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the
civilian character of the police force.

3. Relief and rescue operations during calamities and disasters; [44]


4. Amateur sports promotion and development;[45]

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines,
the IBP asserts that by the deployment of the Marines, the civilian task of law enforcement is militarized in
violation of Section 3, Article II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy
clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions of the LOI itself, which
sufficiently provides the metes and bounds of the Marines authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP. In
fact, the Metro Manila Police Chief is the overall leader of the PNP-Philippine Marines joint visibility patrols.
[37]
Under the LOI, the police forces are tasked to brief or orient the soldiers on police patrol procedures. [38] It is
their responsibility to direct and manage the deployment of the Marines. [39] It is, likewise, their duty to provide
the necessary equipment to the Marines and render logistical support to these soldiers. [40] In view of the
foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the
deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither
does it amount to an insidious incursion of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.[41]

5. Development of the culture and the arts;[46]


6. Conservation of natural resources;[47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities; [50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students; [52]
12. Anti-drug enforcement activities;[53]

In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his
alleged involvement in civilian law enforcement, has been virtually appointed to a civilian post in derogation
of the aforecited provision. The real authority in these operations, as stated in the LOI, is lodged with the head
of a civilian institution, the PNP, and not with the military. Such being the case, it does not matter whether the
AFP Chief actually participates in the Task Force Tulungan since he does not exercise any authority or control
over the same. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility
patrols does not destroy the civilian character of the PNP.

13. Sanitary inspections;[54]

Considering the above circumstances, the Marines render nothing more than assistance required in
conducting the patrols. As such, there can be no insidious incursion of the military in civilian affairs nor can
there be a violation of the civilian supremacy clause in the Constitution.

17. Peace and order policy formulation in local government units. [58]

It is worth mentioning that military assistance to civilian authorities in various forms persists in
Philippine jurisdiction. The Philippine experience reveals that it is not averse to requesting the assistance of the
military in the implementation and execution of certain traditionally civil functions. As correctly pointed out
by the Solicitor General, some of the multifarious activities wherein military aid has been rendered,
exemplifying the activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;[42]

14. Conduct of census work;[55]


15. Administration of the Civil Aeronautics Board;[56]
16. Assistance in installation of weather forecasting devices;[57]

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken,
executive practice, long pursued to the knowledge of Congress and, yet, never before questioned. [59] What we
have here is mutual support and cooperation between the military and civilian authorities, not derogation of
civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the use of military force
for domestic purposes has persisted,[60] and whose Constitution, unlike ours, does not expressly provide for the
power to call, the use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the Philippine Marines.Under the Posse
Comitatus Act[61] of the US, the use of the military in civilian law enforcement is generally prohibited, except
in certain allowable circumstances. A provision of the Act states:

2. Administration of the Philippine National Red Cross;[43]


1385. Use of Army and Air Force as posse comitatus

189

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of
Congress, willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the
laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.[62]
To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel,
the US courts[63] apply the following standards, to wit:

One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has
complained that his political or civil rights have been violated as a result of the deployment of the Marines. It
was precisely to safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol
was conceived. Freedom and democracy will be in full bloom only when people feel secure in their homes and
in the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a
manner that the military personnel subjected the citizens to the exercise of military power which was
regulatory, proscriptive, or compulsory[64] George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of military personnel in civil law
enforcement. Seelikewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE
THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973.64 in nature, either presently
or prospectively?

SO ORDERED.

EXECUTIVE SECRETARY VS CA
Republic of the Philippines
SUPREME COURT
Manila

xxx
When this concept is transplanted into the present legal context, we take it to mean that military involvement,
even when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act
unless it actually regulates, forbids or compels some conduct on the part of those claiming relief. A mere threat
of some future injury would be insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to determine whether there
is permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of
the civilian supremacy clause in the Constitution is committed. On this point, the Court agrees with the
observation of the Solicitor General:
3. The designation of tasks in Annex A[65] does not constitute the exercise of regulatory, proscriptive, or
compulsory military power. First, the soldiers do not control or direct the operation. This is evident
from Nos. 6,[66] 8(k)[67] and 9(a)[68] of Annex A. These soldiers, second, also have no power to prohibit or
condemn.In No. 9(d)[69] of Annex A, all arrested persons are brought to the nearest police stations for
proper disposition. And last, these soldiers apply no coercive force. The materials or equipment issued
to them, as shown in No. 8(c)[70] of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or compulsory military power, the
deployment of a handful of Philippine Marines constitutes no impermissible use of military power for
civilian law enforcement.[71]
It appears that the present petition is anchored on fear that once the armed forces are deployed, the
military will gain ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are
unfounded. The power to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP
can show, which it has not, that in the deployment of the Marines, the President has violated the fundamental
law, exceeded his authority or jeopardized the civil liberties of the people, this Court is not inclined to overrule
the Presidents determination of the factual basis for the calling of the Marines to prevent or suppress lawless
violence.

SECOND DIVISION
G.R. No. 131719

May 25, 2004

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF LABOR


AND EMPLOYMENT, AND THE SECRETARY OF FOREIGN AFFAIRS, OWWA PUNO,
ADMINISTRATOR, and POEA ADMINISTRATOR, petitioners,
vs.
THE HON. COURT OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE CHAPTER
(ARCO-PHIL.), INC., representing its members: Worldcare Services Internationale, Inc., Steadfast
International Recruitment Corporation, Dragon International Manpower Services Corporation,
Verdant Manpower Mobilization Corporation, Brent Overseas Personnel, Inc., ARL Manpower
Services, Inc., Dahlzhen International Services, Inc., Interworld Placement Center, Inc., Lakas Tao
Contract Services, Ltd. Co., and SSC Multiservices, respondents.
DECISION
CALLEJO, SR., J.:
In this petition for review on certiorari, the Executive Secretary of the President of the Philippines, the
Secretary of Justice, the Secretary of Foreign Affairs, the Secretary of Labor and Employment, the POEA
Administrator and the OWWA Administrator, through the Office of the Solicitor General, assail the
Decision1 of the Court of Appeals in CA-G.R. SP No. 38815 affirming the Order2 of the Regional Trial Court
of Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401, granting the plea of the petitioners
therein for a writ of preliminary injunction and of the writ of preliminary injunction issued by the trial court on
August 24, 1995.
The Antecedents

190

Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, took
effect on July 15, 1995. The Omnibus Rules and Regulations Implementing the Migrant Workers and Overseas
Filipino Act of 1995 was, thereafter, published in the April 7, 1996 issue of the Manila Bulletin. However,
even before the law took effect, the Asian Recruitment Council Philippine Chapter, Inc. (ARCO-Phil.) filed, on
July 17, 1995, a petition for declaratory relief under Rule 63 of the Rules of Court with the Regional Trial
Court of Quezon City to declare as unconstitutional Section 2, paragraph (g), Section 6, paragraphs (a) to (j),
(l) and (m), Section 7, paragraphs (a) and (b), and Sections 9 and 10 of the law, with a plea for the issuance of
a temporary restraining order and/or writ of preliminary injunction enjoining the respondents therein from
enforcing the assailed provisions of the law.

PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR ALLOW THE


DEPLOYMENT ONLY OF SKILLED FILIPINO WORKERS.4

In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act No. 8042 was self-executory and that no
implementing rules were needed. It prayed that the court issue a temporary restraining order to enjoin the
enforcement of Section 6, paragraphs (a) to (m) on illegal recruitment, Section 7 on penalties for illegal
recruitment, and Section 9 on venue of criminal actions for illegal recruitments, viz:

Viewed in the light of the foregoing discussions, there appears to be urgent an imperative need for
this Honorable Court to maintain the status quo by enjoining the implementation or effectivity of
the questioned provisions of RA 8042, by way of a restraining order otherwise, the member
recruitment agencies of the petitioner will suffer grave or irreparable damage or injury. With the
effectivity of RA 8042, a great majority of the duly licensed recruitment agencies have stopped or
suspended their operations for fear of being prosecuted under the provisions of a law that are unjust
and unconstitutional. This Honorable Court may take judicial notice of the fact that processing of
deployment papers of overseas workers for the past weeks have come to a standstill at the POEA
and this has affected thousands of workers everyday just because of the enactment of RA 8042.
Indeed, this has far reaching effects not only to survival of the overseas manpower supply industry
and the active participating recruitment agencies, the countrys economy which has survived mainly
due to the dollar remittances of the overseas workers but more importantly, to the poor and the
needy who are in dire need of income-generating jobs which can only be obtained from abroad. The
loss or injury that the recruitment agencies will suffer will then be immeasurable and irreparable.
As of now, even foreign employers have already reduced their manpower requirements from the
Philippines due to their knowledge that RA 8042 prejudiced and adversely affected the local
recruitment agencies.3

Sec. 2 subsection (i, 2nd par.)


Nonetheless, the deployment of Filipino overseas workers, whether land-based or sea-based, by
local service contractors and manning agents employing them shall be encourages (sic).
Appropriate incentives may be extended to them.

II. ILLEGAL RECRUITMENT


SEC. 6. Definition. For purposes of this Act, illegal recruitment shall mean any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring, or procuring workers and includes referring,
contract services, promising or advertising for employment abroad, whether for profit or not, when
undertaken by a non-licensee or non-holder of authority contemplated under Article 13(f) of
Presidential Decree No. 442, as amended, otherwise known as the Labor Code of the Philippines:
Provided, That any such non-licensee or non-holder who, in any manner, offers or promises for a
fee employment abroad to two or more persons shall be deemed so engaged. It shall, likewise,
include the following acts, whether committed by any person, whether a non-licensee, non-holder,
licensee or holder of authority:
(a) To charge or accept directly or indirectly any amount greater than that specified in
the schedule of allowable fees prescribed by the Secretary of Labor and Employment, or
to make a worker pay any amount greater than that actually received by him as a loan or
advance;
(b) To furnish or publish any false notice or information or document in relation to
recruitment or employment;

On August 1, 1995, the trial court issued a temporary restraining order effective for a period of only twenty
(20) days therefrom.

(c) To give any false notice, testimony, information or document or commit any act of
misrepresentation for the purpose of securing a license or authority under the Labor
Code;

After the petitioners filed their comment on the petition, the ARCO-Phil. filed an amended petition, the
amendments consisting in the inclusion in the caption thereof eleven (11) other corporations which it alleged
were its members and which it represented in the suit, and a plea for a temporary restraining order enjoining
the respondents from enforcing Section 6 subsection (i), Section 6 subsection (k) and paragraphs 15 and 16
thereof, Section 8, Section 10, paragraphs 1 and 2, and Sections 11 and 40 of Rep. Act No. 8042.

(d) To induce or attempt to induce a worker already employed to quit his employment in
order to offer him another unless the transfer is designed to liberate a worker from
oppressive terms and conditions of employment;

The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6 subsection (a) to (m), Section 7(a) to (b),
and Section 10 paragraphs (1) and (2), quoted as follows:
(g) THE STATE RECOGNIZES THAT THE ULTIMATE PROTECTION TO ALL MIGRANT
WORKERS IS THE POSSESSION OF SKILLS. PURSUANT TO THIS AND AS SOON AS

(e) To influence or attempt to influence any person or entity not to employ any worker
who has not applied for employment through his agency;
(f) To engage in the recruitment or placement of workers in jobs harmful to public health
or morality or to the dignity of the Republic of the Philippines;

191

(g) To obstruct or attempt to obstruct inspection by the Secretary of Labor and


Employment or by his duly authorized representative;
(h) To fail to submit reports on the status of employment, placement vacancies,
remittance of foreign exchange earnings, separation from jobs, departures and such
other matters or information as may be required by the Secretary of Labor and
Employment;
(i) To substitute or alter to the prejudice of the worker, employment contracts approved
and verified by the Department of Labor and Employment from the time of actual
signing thereof by the parties up to and including the period of the expiration of the
same without the approval of the Department of Labor and Employment;

(a) Any person found guilty of illegal recruitment shall suffer the penalty of imprisonment of not
less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less
than two hundred thousand pesos (P200,000.00) nor more than five hundred thousand pesos
(P500,000.00).
(b) The penalty of life imprisonment and a fine of not less than five hundred thousand pesos
(P500,000.00) nor more than one million pesos (P1,000,000.00) shall be imposed if illegal
recruitment constitutes economic sabotage as defined herein.
Provided, however, That the maximum penalty shall be imposed if the person illegally recruited is
less than eighteen (18) years of age or committed by a non-licensee or non-holder of authority.
Sec. 8.

(j) For an officer or agent of a recruitment or placement agency to become an officer or


member of the Board of any corporation engaged in travel agency or to be engaged
directly or indirectly in the management of a travel agency;
(k) To withhold or deny travel documents from applicant workers before departure for
monetary or financial considerations other than those authorized under the Labor Code
and its implementing rules and regulations;

Prohibition on Officials and Employees. It shall be unlawful for any official or employee of the
Department of Labor and Employment, the Philippine Overseas Employment Administration
(POEA), or the Overseas Workers Welfare Administration (OWWA), or the Department of Foreign
Affairs, or other government agencies involved in the implementation of this Act, or their
relatives within the fourth civil degree of consanguinity or affinity, to engage, directly or indirectly,
in the business of recruiting migrant workers as defined in this Act. The penalties provided in the
immediate preceding paragraph shall be imposed upon them. (underscoring supplied)

(l) Failure to actually deploy without valid reason as determined by the Department of
Labor and Employment; and
(m) Failure to reimburse expenses incurred by the worker in connection with his
documentation and processing for purposes of deployment, in cases where the
deployment does not actually take place without the workers fault. Illegal recruitment
when committed by a syndicate or in large scale shall be considered an offense
involving economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out by a group of three (3) or
more persons conspiring or confederating with one another. It is deemed committed in large scale if
committed against three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are the principals, accomplices and
accessories. In case of juridical persons, the officers having control, management or direction of
their business shall be liable.

SEC. 7. Penalties.

Sec. 10, pars. 1 & 2.


Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters of the
National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to
hear and decide,within ninety (90) calendar days after the filing of the complaint, the claims arising
out of an employer-employee relationship or by virtue of any law or contract involving Filipino
workers for overseas deployment including claims for actual, moral, exemplary and other forms of
damages.
The liability of the principal/employer and the recruitment/placement agency for any and all claims
under this section shall be joint and several. This provision shall be incorporated in the contract for
overseas employment and shall be a condition precedent for its approval. The performance bond to
be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money
claims or damages that may be awarded to the workers. If the recruitment/placement agency is a
juridical being, the corporate officers and directors and partners as the case may be, shall
themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid
claims and damages.

192

SEC. 11. Mandatory Periods for Resolution of Illegal Recruitment Cases. The preliminary
investigations of cases under this Act shall be terminated within a period of thirty (30) calendar
days from the date of their filing. Where the preliminary investigation is conducted by a
prosecution officer and a prima facie case is established, the corresponding information shall be
filed in court within twenty-four (24) hours from the termination of the investigation. If the
preliminary investigation is conducted by a judge and a prima facie case is found to exist, the
corresponding information shall be filed by the proper prosecution officer within forty-eight (48)
hours from the date of receipt of the records of the case.
The respondent averred that the aforequoted provisions of Rep. Act No. 8042 violate Section 1, Article III of
the Constitution.5 According to the respondent, Section 6(g) and (i) discriminated against unskilled workers
and their families and, as such, violated the equal protection clause, as well as Article II, Section 12 6 and
Article XV, Sections 17 and 3(3) of the Constitution.8 As the law encouraged the deployment of skilled Filipino
workers, only overseas skilled workers are granted rights. The respondent stressed that unskilled workers also
have the right to seek employment abroad. According to the respondent, the right of unskilled workers to due
process is violated because they are prevented from finding employment and earning a living abroad. It cannot
be argued that skilled workers are immune from abuses by employers, while unskilled workers are merely
prone to such abuses. It was pointed out that both skilled and unskilled workers are subjected to abuses by
foreign employers. Furthermore, the prohibition of the deployment of unskilled workers abroad would only
encourage fly-by-night illegal recruiters.
According to the respondent, the grant of incentives to service contractors and manning agencies to the
exclusion of all other licensed and authorized recruiters is an invalid classification. Licensed and authorized
recruiters are thus deprived of their right to property and due process and to the "equality of the person." It is
understandable for the law to prohibit illegal recruiters, but to discriminate against licensed and registered
recruiters is unconstitutional.
The respondent, likewise, alleged that Section 6, subsections (a) to (m) is unconstitutional because licensed
and authorized recruitment agencies are placed on equal footing with illegal recruiters. It contended that while
the Labor Code distinguished between recruiters who are holders of licenses and non-holders thereof in the
imposition of penalties, Rep. Act No. 8042 does not make any distinction. The penalties in Section 7(a) and (b)
being based on an invalid classification are, therefore, repugnant to the equal protection clause, besides being
excessive; hence, such penalties are violative of Section 19(1), Article III of the Constitution. 9 It was also
pointed out that the penalty for officers/officials/employees of recruitment agencies who are found guilty of
economic sabotage or large-scale illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since
recruitment agencies usually operate with a manpower of more than three persons, such agencies are forced to
shut down, lest their officers and/or employees be charged with large scale illegal recruitment or economic
sabotage and sentenced to life imprisonment. Thus, the penalty imposed by law, being disproportionate to the
prohibited acts, discourages the business of licensed and registered recruitment agencies.
The respondent also posited that Section 6(m) and paragraphs (15) and (16), Sections 8, 9 and 10, paragraph 2
of the law violate Section 22, Article III of the Constitution 10 prohibiting ex-post facto laws and bills of
attainder. This is because the provisions presume that a licensed and registered recruitment agency is guilty of
illegal recruitment involving economic sabotage, upon a finding that it committed any of the prohibited acts
under the law. Furthermore, officials, employees and their relatives are presumed guilty of illegal recruitment
involving economic sabotage upon such finding that they committed any of the said prohibited acts.

The respondent further argued that the 90-day period in Section 10, paragraph (1) within which a labor arbiter
should decide a money claim is relatively short, and could deprive licensed and registered recruiters of their
right to due process. The period within which the summons and the complaint would be served on foreign
employees and, thereafter, the filing of the answer to the complaint would take more than 90 days. This would
thereby shift on local licensed and authorized recruiters the burden of proving the defense of foreign
employers. Furthermore, the respondent asserted, Section 10, paragraph 2 of the law, which provides for the
joint and several liability of the officers and employees, is a bill of attainder and a violation of the right of the
said corporate officers and employees to due process. Considering that such corporate officers and employees
act with prior approval of the board of directors of such corporation, they should not be liable, jointly and
severally, for such corporate acts.
The respondent asserted that the following provisions of the law are unconstitutional:
SEC. 9. Venue. A criminal action arising from illegal recruitment as defined herein shall be filed
with the Regional Trial Court of the province or city where the offense was committed or where the
offended party actually resides at the time of the commission of the offense: Provided, That the
court where the criminal action is first filed shall acquire jurisdiction to the exclusion of other
courts: Provided, however, That the aforestated provisions shall also apply to those criminal actions
that have already been filed in court at the time of the effectivity of this Act.

SEC. 10. Money Claims. Notwithstanding any provision of law to the contrary, the Labor Arbiters
of the National Labor Relations Commission (NLRC) shall have the original and exclusive
jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint,
the claims arising out of an employer-employee relationship or by virtue of any law or contract
involving Filipino workers for overseas deployment including claims for actual, moral, exemplary
and other forms of damages.
Sec. 40.
The departments and agencies charged with carrying out the provisions of this Act shall, within
ninety (90) days after the effectiviy of this Act, formulate the necessary rules and regulations for its
effective implementation.
According to the respondent, the said provisions violate Section 5(5), Article VIII of the Constitution11 because
they impair the power of the Supreme Court to promulgate rules of procedure.
In their answer to the petition, the petitioners alleged, inter alia, that (a) the respondent has no cause of action
for a declaratory relief; (b) the petition was premature as the rules implementing Rep. Act No. 8042 not having
been released as yet; (c) the assailed provisions do not violate any provisions of the Constitution; and, (d) the
law was approved by Congress in the exercise of the police power of the State. In opposition to the
respondents plea for injunctive relief, the petitioners averred that:
As earlier shown, the amended petition for declaratory relief is devoid of merit for failure of petitioner to
demonstrate convincingly that the assailed law is unconstitutional, apart from the defect and impropriety of the

193

petition. One who attacks a statute, alleging unconstitutionality must prove its invalidity beyond reasonable
doubt (Caleon v. Agus Development Corporation, 207 SCRA 748). All reasonable doubts should be resolved in
favor of the constitutionality of a statute (People v. Vera, 65 Phil. 56). This presumption of constitutionality is
based on the doctrine of separation of powers which enjoin upon each department a becoming respect for the
acts of the other departments (Garcia vs. Executive Secretary, 204 SCRA 516 [1991]). Necessarily, the
ancillary remedy of a temporary restraining order and/or a writ of preliminary injunction prayed for must fall.
Besides, an act of legislature approved by the executive is presumed to be within constitutional bounds
(National Press Club v. Commission on Elections, 207 SCRA 1).12
After the respective counsels of the parties were heard on oral arguments, the trial court issued on August 21,
1995, an order granting the petitioners plea for a writ of preliminary injunction upon a bond of P50,000. The
petitioner posted the requisite bond and on August 24, 1995, the trial court issued a writ of preliminary
injunction enjoining the enforcement of the following provisions of Rep. Act No. 8042 pending the termination
of the proceedings:

The petitioners now come to this Court in a petition for review on certiorari on the following grounds:
1. Private respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its memberagencies to be protected by the injunctive relief and/or violation of said rights by the enforcement
of the assailed sections of R.A. 8042;
2. The P50,000 injunction bond fixed by the court a quo and sustained by the Court of Appeals is
grossly inadequate to answer for the damage which petitioners-officials may sustain, should private
respondent ARCO-PHIL. be finally adjudged as not being entitled thereto.15
On February 16, 1998, this Court issued a temporary restraining order enjoining the respondents from
enforcing the assailed order and writ of preliminary injunction.
The Issues

Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections (a) to (m), and pars. 15 & 16;
Section 7, subsections (a) & (b); Section 8; Section 9; Section 10; pars. 1 & 2; Section 11; and
Section 40 of Republic Act No. 8042, otherwise known as the Migrant Workers and Overseas
Filipinos Act of 1995. 13
The petitioners filed a petition for certiorari with the Court of Appeals assailing the order and the writ of
preliminary injunction issued by the trial court on the following grounds:
1. Respondent ARCO-PHIL. had utterly failed to show its clear right/s or that of its memberagencies to be protected by the injunctive relief and/or violation of said rights by the enforcement
of the assailed sections of R.A. 8042;
2. Respondent Judge fixed a P50,000 injunction bond which is grossly inadequate to answer for the
damage which petitioner-officials may sustain, should respondent ARCO-PHIL. be finally adjudged
as not being entitled thereto.14
The petitioners asserted that the respondent is not the real party-in-interest as petitioner in the trial court. It is
inconceivable how the respondent, a non-stock and non-profit corporation, could sustain direct injury as a
result of the enforcement of the law. They argued that if, at all, any damage would result in the implementation
of the law, it is the licensed and registered recruitment agencies and/or the unskilled Filipino migrant workers
discriminated against who would sustain the said injury or damage, not the respondent. The respondent, as
petitioner in the trial court, was burdened to adduce preponderant evidence of such irreparable injury, but
failed to do so. The petitioners further insisted that the petition a quo was premature since the rules and
regulations implementing the law had yet to be promulgated when such petition was filed. Finally, the
petitioners averred that the respondent failed to establish the requisites for the issuance of a writ of preliminary
injunction against the enforcement of the law and the rules and regulations issued implementing the same.
On December 5, 1997, the appellate court came out with a four-page decision dismissing the petition and
affirming the assailed order and writ of preliminary injunction issued by the trial court. The appellate court,
likewise, denied the petitioners motion for reconsideration of the said decision.

The core issue in this case is whether or not the trial court committed grave abuse of its discretion amounting
to excess or lack of jurisdiction in issuing the assailed order and the writ of preliminary injunction on a bond of
onlyP50,000 and whether or not the appellate court erred in affirming the trial courts order and the writ of
preliminary injunction issued by it.
The petitioners contend that the respondent has no locus standi. It is a non-stock, non-profit organization;
hence, not the real party-in-interest as petitioner in the action. Although the respondent filed the petition in the
Regional Trial Court in behalf of licensed and registered recruitment agencies, it failed to adduce in evidence a
certified copy of its Articles of Incorporation and the resolutions of the said members authorizing it to
represent the said agencies in the proceedings. Neither is the suit of the respondent a class suit so as to vest in
it a personality to assail Rep. Act No. 8042; the respondent is service-oriented while the recruitment agencies it
purports to represent are profit-oriented. The petitioners assert that the law is presumed constitutional and, as
such, the respondent was burdened to make a case strong enough to overcome such presumption and establish
a clear right to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the trial court for the issuance of a writ of preliminary
injunction and affirmed by the appellate court. They assert that the amount is grossly inadequate to answer for
any damages that the general public may suffer by reason of the non-enforcement of the assailed provisions of
the law. The trial court committed a grave abuse of its discretion in granting the respondents plea for
injunctive relief, and the appellate court erred in affirming the order and the writ of preliminary injunction
issued by the trial court.
The respondent, for its part, asserts that it has duly established its locus standi and its right to injunctive relief
as gleaned from its pleadings and the appendages thereto. Under Section 5, Rule 58 of the Rules of Court, it
was incumbent on the petitioners, as respondents in the RTC, to show cause why no injunction should issue. It
avers that the injunction bond posted by the respondent was more than adequate to answer for any injury or
damage the petitioners may suffer, if any, by reason of the writ of preliminary injunction issued by the RTC. In
any event, the assailed provisions of Rep. Act No. 8042 exposed its members to the immediate and irreparable
damage of being deprived of their right to a livelihood without due process, a property right protected under
the Constitution.

194

The respondent contends that the commendable purpose of the law to eradicate illegal recruiters should not be
done at the expense and to the prejudice of licensed and authorized recruitment agencies. The writ of
preliminary injunction was necessitated by the great number of duly licensed recruitment agencies that had
stopped or suspended their business operations for fear that their officers and employees would be indicted and
prosecuted under the assailed oppressive penal provisions of the law, and meted excessive penalties. The
respondent, likewise, urges that the Court should take judicial notice that the processing of deployment papers
of overseas workers have come to a virtual standstill at the POEA.

However, the respondent has no locus standi to file the petition for and in behalf of unskilled workers. We note
that it even failed to implead any unskilled workers in its petition. Furthermore, in failing to implead, as
parties-petitioners, the eleven licensed and registered recruitment agencies it claimed to represent, the
respondent failed to comply with Section 2 of Rule 6320 of the Rules of Court. Nevertheless, since the eleven
licensed and registered recruitment agencies for which the respondent filed the suit are specifically named in
the petition, the amended petition is deemed amended to avoid multiplicity of suits. 21
The Assailed Order and Writ of

The Courts Ruling


Preliminary Injunction Is Mooted
The petition is meritorious.
By Case Law
The Respondent Has Locus Standi
To File the Petition in the RTC in Representation of the Eleven Licensed and Registered Recruitment Agencies
Impleaded in the Amended Petition
The modern view is that an association has standing to complain of injuries to its members. This view fuses the
legal identity of an association with that of its members.16 An association has standing to file suit for its
workers despite its lack of direct interest if its members are affected by the action. An organization has
standing to assert the concerns of its constituents.17
In Telecommunications and Broadcast Attorneys of the Philippines v. Commission on Elections,18 we held that
standing jus tertii would be recognized only if it can be shown that the party suing has some substantial
relation to the third party, or that the right of the third party would be diluted unless the party in court is
allowed to espouse the third partys constitutional claims.
In this case, the respondent filed the petition for declaratory relief under Rule 64 of the Rules of Court for and
in behalf of its eleven (11) licensed and registered recruitment agencies which are its members, and which
approved separate resolutions expressly authorizing the respondent to file the said suit for and in their behalf.
We note that, under its Articles of Incorporation, the respondent was organized for the purposes inter alia of
promoting and supporting the growth and development of the manpower recruitment industry, both in the local
and international levels; providing, creating and exploring employment opportunities for the exclusive benefit
of its general membership; enhancing and promoting the general welfare and protection of Filipino workers;
and, to act as the representative of any individual, company, entity or association on matters related to the
manpower recruitment industry, and to perform other acts and activities necessary to accomplish the purposes
embodied therein. The respondent is, thus, the appropriate party to assert the rights of its members, because it
and its members are in every practical sense identical. The respondent asserts that the assailed provisions
violate the constitutional rights of its members and the officers and employees thereof. The respondent is but
the medium through which its individual members seek to make more effective the expression of their voices
and the redress of their grievances.19

The respondent justified its plea for injunctive relief on the allegation in its amended petition that its members
are exposed to the immediate and irreparable danger of being deprived of their right to a livelihood and other
constitutional rights without due process, on its claim that a great number of duly licensed recruitment
agencies have stopped or suspended their operations for fear that (a) their officers and employees would be
prosecuted under the unjust and unconstitutional penal provisions of Rep. Act No. 8042 and meted equally
unjust and excessive penalties, including life imprisonment, for illegal recruitment and large scale illegal
recruitment without regard to whether the recruitment agencies involved are licensed and/or authorized; and,
(b) if the members of the respondent, which are licensed and authorized, decide to continue with their
businesses, they face the stigma and the curse of being labeled "illegal recruiters." In granting the respondents
plea for a writ of preliminary injunction, the trial court held, without stating the factual and legal basis therefor,
that the enforcement of Rep. Act No. 8042, pendente lite, would cause grave and irreparable injury to the
respondent until the case is decided on its merits.
We note, however, that since Rep. Act No. 8042 took effect on July 15, 1995, the Court had, in a catena of
cases, applied the penal provisions in Section 6, including paragraph (m) thereof, and the last two paragraphs
therein defining large scale illegal recruitment committed by officers and/or employees of recruitment agencies
by themselves and in connivance with private individuals, and imposed the penalties provided in Section 7
thereof, including the penalty of life imprisonment.22 The Informations therein were filed after preliminary
investigations as provided for in Section 11 of Rep. Act No. 8042 and in venues as provided for in Section 9 of
the said act. InPeople v. Chowdury,23 we held that illegal recruitment is a crime of economic sabotage and must
be enforced.
In People v. Diaz,24 we held that Rep. Act No. 8042 is but an amendment of the Labor Code of the Philippines
and is not an ex-post facto law because it is not applied retroactively. In JMM Promotion and Management,
Inc. v. Court of Appeals,25 the issue of the extent of the police power of the State to regulate a business,
profession or calling vis--vis the equal protection clause and the non-impairment clause of the Constitution
were raised and we held, thus:
A profession, trade or calling is a property right within the meaning of our constitutional
guarantees. One cannot be deprived of the right to work and the right to make a living because
these rights are property rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong.

195

Nevertheless, no right is absolute, and the proper regulation of a profession, calling, business or
trade has always been upheld as a legitimate subject of a valid exercise of the police power by the
state particularly when their conduct affects either the execution of legitimate governmental
functions, the preservation of the State, the public health and welfare and public morals. According
to the maxim, sic utere tuo ut alienum non laedas, it must of course be within the legitimate range
of legislative action to define the mode and manner in which every one may so use his own
property so as not to pose injury to himself or others.
In any case, where the liberty curtailed affects at most the rights of property, the permissible scope
of regulatory measures is certainly much wider. To pretend that licensing or accreditation
requirements violates the due process clause is to ignore the settled practice, under the mantle of the
police power, of regulating entry to the practice of various trades or professions. Professionals
leaving for abroad are required to pass rigid written and practical exams before they are deemed fit
to practice their trade. Seamen are required to take tests determining their seamanship. Locally, the
Professional Regulation Commission has begun to require previously licensed doctors and other
professionals to furnish documentary proof that they had either re-trained or had undertaken
continuing education courses as a requirement for renewal of their licenses. It is not claimed that
these requirements pose an unwarranted deprivation of a property right under the due process
clause. So long as professionals and other workers meet reasonable regulatory standards no such
deprivation exists.
Finally, it is a futile gesture on the part of petitioners to invoke the non-impairment clause of the
Constitution to support their argument that the government cannot enact the assailed regulatory
measures because they abridge the freedom to contract. In Philippine Association of Service
Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment clause of the Constitution must
yield to the loftier purposes targeted by the government." Equally important, into every contract is
read provisions of existing law, and always, a reservation of the police power for so long as the
agreement deals with a subject impressed with the public welfare.
A last point. Petitioners suggest that the singling out of entertainers and performing artists under the
assailed department orders constitutes class legislation which violates the equal protection clause of
the Constitution. We do not agree.
The equal protection clause is directed principally against undue favor and individual or class
privilege. It is not intended to prohibit legislation which is limited to the object to which it is
directed or by the territory in which it is to operate. It does not require absolute equality, but merely
that all persons be treated alike under like conditions both as to privileges conferred and liabilities
imposed. We have held, time and again, that the equal protection clause of the Constitution does not
forbid classification for so long as such classification is based on real and substantial differences
having a reasonable relation to the subject of the particular legislation. If classification is germane
to the purpose of the law, concerns all members of the class, and applies equally to present and
future conditions, the classification does not violate the equal protection guarantee. 26
The validity of Section 6 of R.A. No. 8042 which provides that employees of recruitment agencies may be
criminally liable for illegal recruitment has been upheld in People v. Chowdury:27

As stated in the first sentence of Section 6 of RA 8042, the persons who may be held liable for
illegal recruitment are the principals, accomplices and accessories. An employee of a company or
corporation engaged in illegal recruitment may be held liable as principal, together with his
employer, if it is shown that he actively and consciously participated in illegal recruitment. It has
been held that the existence of the corporate entity does not shield from prosecution the corporate
agent who knowingly and intentionally causes the corporation to commit a crime. The corporation
obviously acts, and can act, only by and through its human agents, and it is their conduct which the
law must deter. The employee or agent of a corporation engaged in unlawful business naturally aids
and abets in the carrying on of such business and will be prosecuted as principal if, with knowledge
of the business, its purpose and effect, he consciously contributes his efforts to its conduct and
promotion, however slight his contribution may be. 28
By its rulings, the Court thereby affirmed the validity of the assailed penal and procedural provisions of Rep.
Act No. 8042, including the imposable penalties therefor. Until the Court, by final judgment, declares that the
said provisions are unconstitutional, the enforcement of the said provisions cannot be enjoined.
The RTC Committed Grave Abuse of Its Discretion Amounting to Excess or Lack of Jurisdiction in Issuing the
Assailed Order and the Writ of Preliminary Injunction
The matter of whether to issue a writ of preliminary injunction or not is addressed to the sound discretion of
the trial court. However, if the court commits grave abuse of its discretion in issuing the said writ amounting to
excess or lack of jurisdiction, the same may be nullified via a writ of certiorari and prohibition.
In Social Security Commission v. Judge Bayona,29 we ruled that a law is presumed constitutional until
otherwise declared by judicial interpretation. The suspension of the operation of the law is a matter of extreme
delicacy because it is an interference with the official acts not only of the duly elected representatives of the
people but also of the highest magistrate of the land.
In Younger v. Harris, Jr.,30 the Supreme Court of the United States emphasized, thus:
Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. 752 Beal
v. Missouri Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed. 577.
And similarly, in Douglas, supra, we made clear, after reaffirming this rule, that:
"It does not appear from the record that petitioners have been threatened with any injury other than
that incidental to every criminal proceeding brought lawfully and in good faith " 319 U.S., at
164, 63 S.Ct., at 881.31
The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against good
faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other unusual

196

circumstance that would call for equitable relief.32 The "on its face" invalidation of statutes has been described
as "manifestly strong medicine," to be employed "sparingly and only as a last resort," and is generally
disfavored.33
To be entitled to a preliminary injunction to enjoin the enforcement of a law assailed to be unconstitutional, the
party must establish that it will suffer irreparable harm in the absence of injunctive relief and must demonstrate
that it is likely to succeed on the merits, or that there are sufficiently serious questions going to the merits and
the balance of hardships tips decidedly in its favor.34 The higher standard reflects judicial deference toward
"legislation or regulations developed through presumptively reasoned democratic processes." Moreover, an
injunction will alter, rather than maintain, the status quo, or will provide the movant with substantially all the
relief sought and that relief cannot be undone even if the defendant prevails at a trial on the
merits.35 Considering that injunction is an exercise of equitable relief and authority, in assessing whether to
issue a preliminary injunction, the courts must sensitively assess all the equities of the situation, including the
public interest.36 In litigations between governmental and private parties, courts go much further both to give
and withhold relief in furtherance of public interest than they are accustomed to go when only private interests
are involved.37 Before the plaintiff may be entitled to injunction against future enforcement, he is burdened to
show some substantial hardship.38
The fear or chilling-effect of the assailed penal provisions of the law on the members of the respondent does
not by itself justify prohibiting the State from enforcing them against those whom the State believes in good
faith to be punishable under the laws:
Just as the incidental "chilling effect" of such statutes does not automatically render them
unconstitutional, so the chilling effect that admittedly can result from the very existence of certain
laws on the statute books does not in itself justify prohibiting the State from carrying out the
important and necessary task of enforcing these laws against socially harmful conduct that the State
believes in good faith to be punishable under its laws and the Constitution.39
It must be borne in mind that subject to constitutional limitations, Congress is empowered to define what acts
or omissions shall constitute a crime and to prescribe punishments therefor.40 The power is inherent in
Congress and is part of the sovereign power of the State to maintain peace and order. Whatever views may be
entertained regarding the severity of punishment, whether one believes in its efficiency or its futility, these are
peculiarly questions of legislative policy.41 The comparative gravity of crimes and whether their consequences
are more or less injurious are matters for the State and Congress itself to determine. 42 Specification of penalties
involves questions of legislative policy.43
Due process prohibits criminal stability from shifting the burden of proof to the accused, punishing wholly
passive conduct, defining crimes in vague or overbroad language and failing to grant fair warning of illegal
conduct.44Class legislation is such legislation which denies rights to one which are accorded to others, or
inflicts upon one individual a more severe penalty than is imposed upon another in like case offending.45 Bills
of attainder are legislative acts which inflict punishment on individuals or members of a particular group
without a judicial trial. Essential to a bill of attainder are a specification of certain individuals or a group of
individuals, the imposition of a punishment, penal or otherwise, and the lack of judicial trial.46
Penalizing unlicensed and licensed recruitment agencies and their officers and employees and their relatives
employed in government agencies charged with the enforcement of the law for illegal recruitment and
imposing life imprisonment for those who commit large scale illegal recruitment is not offensive to the

Constitution. The accused may be convicted of illegal recruitment and large scale illegal recruitment only if,
after trial, the prosecution is able to prove all the elements of the crime charged. 47
The possibility that the officers and employees of the recruitment agencies, which are members of the
respondent, and their relatives who are employed in the government agencies charged in the enforcement of
the law, would be indicted for illegal recruitment and, if convicted sentenced to life imprisonment for large
scale illegal recruitment, absent proof of irreparable injury, is not sufficient on which to base the issuance of a
writ of preliminary injunction to suspend the enforcement of the penal provisions of Rep. Act No. 8042 and
avert any indictments under the law.48 The normal course of criminal prosecutions cannot be blocked on the
basis of allegations which amount to speculations about the future.49
There is no allegation in the amended petition or evidence adduced by the respondent that the officers and/or
employees of its members had been threatened with any indictments for violations of the penal provisions of
Rep. Act No. 8042. Neither is there any allegation therein that any of its members and/or their officers and
employees committed any of the acts enumerated in Section 6(a) to (m) of the law for which they could be
indicted. Neither did the respondent adduce any evidence in the RTC that any or all of its members or a great
number of other duly licensed and registered recruitment agencies had to stop their business operations
because of fear of indictments under Sections 6 and 7 of Rep. Act No. 8042. The respondent merely speculated
and surmised that licensed and registered recruitment agencies would close shop and stop business operations
because of the assailed penal provisions of the law. A writ of preliminary injunction to enjoin the enforcement
of penal laws cannot be based on such conjectures or speculations. The Court cannot take judicial notice that
the processing of deployment papers of overseas workers have come to a virtual standstill at the POEA
because of the assailed provisions of Rep. Act No. 8042. The respondent must adduce evidence to prove its
allegation, and the petitioners accorded a chance to adduce controverting evidence.
The respondent even failed to adduce any evidence to prove irreparable injury because of the enforcement of
Section 10(1)(2) of Rep. Act No. 8042. Its fear or apprehension that, because of time constraints, its members
would have to defend foreign employees in cases before the Labor Arbiter is based on speculations. Even if
true, such inconvenience or difficulty is hardly irreparable injury.
The trial court even ignored the public interest involved in suspending the enforcement of Rep. Act No. 8042
vis--vis the eleven licensed and registered recruitment agencies represented by the respondent. In People v.
Gamboa,50 we emphasized the primary aim of Rep. Act No. 8042:
Preliminarily, the proliferation of illegal job recruiters and syndicates preying on innocent people
anxious to obtain employment abroad is one of the primary considerations that led to the enactment
of The Migrant Workers and Overseas Filipinos Act of 1995. Aimed at affording greater protection
to overseas Filipino workers, it is a significant improvement on existing laws in the recruitment and
placement of workers for overseas employment. Otherwise known as the Magna Carta of OFWs, it
broadened the concept of illegal recruitment under the Labor Code and provided stiffer penalties
thereto, especially those that constitute economic sabotage, i.e., Illegal Recruitment in Large Scale
and Illegal Recruitment Committed by a Syndicate.51
By issuing the writ of preliminary injunction against the petitioners sans any evidence, the trial court
frustrated, albeit temporarily, the prosecution of illegal recruiters and allowed them to continue victimizing
hapless and innocent people desiring to obtain employment abroad as overseas workers, and blocked the
attainment of the salutary policies52 embedded in Rep. Act No. 8042. It bears stressing that overseas workers,

197

land-based and sea-based, had been remitting to the Philippines billions of dollars which over the years had
propped the economy.
In issuing the writ of preliminary injunction, the trial court considered paramount the interests of the eleven
licensed and registered recruitment agencies represented by the respondent, and capriciously overturned the
presumption of the constitutionality of the assailed provisions on the barefaced claim of the respondent that the
assailed provisions of Rep. Act No. 8042 are unconstitutional. The trial court committed a grave abuse of its
discretion amounting to excess or lack of jurisdiction in issuing the assailed order and writ of preliminary
injunction. It is for this reason that the Court issued a temporary restraining order enjoining the enforcement of
the writ of preliminary injunction issued by the trial court.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the appellate
court isREVERSED AND SET ASIDE. The Order of the Regional Trial Court dated August 21, 1995 in Civil
Case No. Q-95-24401 and the Writ of Preliminary Injunction issued by it in the said case on August 24, 1995
are NULLIFIED. No costs.
SO ORDERED.

Gamaliel G. Bongco, Oscar Karaan and Jedideoh Sincero for intervenors.

DAVIDE, JR., J.:


This is a special civil action for prohibition and injunction, with a prayer for a temporary restraining order and
preliminary injunction, which seeks to prohibit and restrain the implementation of the "Contract of Lease"
executed by the Philippine Charity Sweepstakes Office (PCSO) and the Philippine Gaming Management
Corporation (PGMC) in connection with the on- line lottery system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a non-stock domestic corporation
composed of civic-spirited citizens, pastors, priests, nuns, and lay leaders who are committed to the cause of
truth, justice, and national renewal. The rest of the petitioners, except Senators Freddie Webb and Wigberto
Taada and Representative Joker P. Arroyo, are suing in their capacities as members of the Board of Trustees
of KILOSBAYAN and as taxpayers and concerned citizens. Senators Webb and Taada and Representative
Arroyo are suing in their capacities as members of Congress and as taxpayers and concerned citizens of the
Philippines.
The pleadings of the parties disclose the factual antecedents which triggered off the filing of this petition.

KILOS BAYAN VS GUINGONA


Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 113375 May 5, 1994


KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA,
EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO,
JOSE ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, SEN. FREDDIE WEBB, SEN.
WIGBERTO TAADA, and REP. JOKER P. ARROYO,petitioners,
vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary, Office of the President; RENATO
CORONA, in his capacity as Assistant Executive Secretary and Chairman of the Presidential review
Committee on the Lotto, Office of the President; PHILIPPINE CHARITY SWEEPSTAKES OFFICE;
and PHILIPPINE GAMING MANAGEMENT CORPORATION, respondents.
Jovito R. Salonga, Fernando Santiago, Emilio C. Capulong, Jr. and Felipe L. Gozon for petitioners.

Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as amended by B.P. Blg. 42) which grants it
the authority to hold and conduct "charity sweepstakes races, lotteries and other similar activities," the PCSO
decided to establish an on- line lottery system for the purpose of increasing its revenue base and diversifying
its sources of funds. Sometime before March 1993, after learning that the PCSO was interested in operating an
on-line lottery system, the Berjaya Group Berhad, "a multinational company and one of the ten largest public
companies in Malaysia," long "engaged in, among others, successful lottery operations in Asia, running both
Lotto and Digit games, thru its subsidiary, Sports Toto Malaysia," with its "affiliate, the International
Totalizator Systems, Inc., . . . an American public company engaged in the international sale or provision of
computer systems, softwares, terminals, training and other technical services to the gaming industry," "became
interested to offer its services and resources to PCSO." As an initial step, Berjaya Group Berhad (through its
individual nominees) organized with some Filipino investors in March 1993 a Philippine corporation known as
the Philippine Gaming Management Corporation (PGMC), which "was intended to be the medium through
which the technical and management services required for the project would be offered and delivered to
PCSO." 1
Before August 1993, the PCSO formally issued a Request for Proposal (RFP) for the Lease Contract of an online lottery system for the PCSO. 2 Relevant provisions of the RFP are the following:
1. EXECUTIVE SUMMARY
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1.2. PCSO is seeking a suitable contractor which shall build, at its own expense, all the
facilities ('Facilities') needed to operate and maintain a nationwide on-line lottery

Renato L. Cayetano and Eleazar B. Reyes for PGMC.

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system. PCSO shall lease the Facilities for a fixed percentage ofquarterly gross receipts.
All receipts from ticket sales shall be turned over directly to PCSO. All capital,
operating expenses and expansion expenses and risks shall be for the exclusive account
of the Lessor.
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1.4. The lease shall be for a period not exceeding fifteen (15) years.
1.5. The Lessor is expected to submit a comprehensive nationwide lottery development
plan ("Development Plan") which will include the game, the marketing of the games,
and the logistics to introduce the games to all the cities and municipalities of the country
within five (5) years.
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1.7. The Lessor shall be selected based on its technical expertise, hardware and software
capability, maintenance support, and financial resources. The Development Plan shall
have a substantial bearing on the choice of the Lessor. The Lessor shall be a domestic
corporation, with at least sixty percent (60%) of its shares owned by Filipino
shareholders.

2.4. DUTIES AND RESPONSIBILITIES OF THE LESSOR


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2.4.2. THE LESSOR
The Proponent is expected to furnish and maintain the Facilities, including the personnel
needed to operate the computers, the communications network and sales offices under a
build-lease basis. The printing of tickets shall be undertaken under the supervision and
control of PCSO. The Facilities shall enable PCSO to computerize the entire gaming
system.
The Proponent is expected to formulate and design consumer-oriented Master Games
Plan suited to the marketplace, especially geared to Filipino gaming habits and
preferences. In addition, the Master Games Plan is expected to include a Product Plan
for each game and explain how each will be introduced into the market. This will be an
integral part of the Development Plan which PCSO will require from the Proponent.
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The Proponent is expected to provide upgrades to modernize the entire gaming system
over the life ofthe lease contract.

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The Proponent is expected to provide technology transfer to PCSO technical personnel. 4
The Office of the President, the National Disaster Control Coordinating Council, the
Philippine National Police, and the National Bureau of Investigation shall be authorized
to use the nationwide telecommunications system of the Facilities Free of Charge.
1.8. Upon expiration of the lease, the Facilities shall be owned by PCSO without any
additional consideration. 3
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7. GENERAL GUIDELINES FOR PROPONENTS


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Finally, the Proponent must be able to stand the acid test of proving that it is an entity
able to take on the role of responsible maintainer of the on-line lottery system, and able
to achieve PSCO's goal of formalizing an on-line lottery system to achieve its mandated
objective. 5

2.2. OBJECTIVES
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The objectives of PCSO in leasing the Facilities from a private entity are as follows:
16. DEFINITION OF TERMS
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2.2.2. Enable PCSO to operate a nationwide on-line Lottery system at no expense or risk
to the government.
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Facilities: All capital equipment, computers, terminals, software, nationwide


telecommunication network, ticket sales offices, furnishings, and fixtures; printing costs;
cost of salaries and wages; advertising and promotion expenses; maintenance costs;
expansion and replacement costs; security and insurance, and all other related expenses
needed to operate nationwide on-line lottery system. 6

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Considering the above citizenship requirement, the PGMC claims that the Berjaya Group "undertook to reduce
its equity stakes in PGMC to 40%," by selling 35% out of the original 75% foreign stockholdings to local
investors.

1.3 Facilities All capital equipment, computers, terminals, software (including source
codes for the On-Line Lottery application software for the terminals,
telecommunications and central systems), technology, intellectual property rights,
telecommunications network, and furnishings and fixtures.

On 15 August 1993, PGMC submitted its bid to the PCSO. 7


The bids were evaluated by the Special Pre-Qualification Bids and Awards Committee (SPBAC) for the online lottery and its Bid Report was thereafter submitted to the Office of the President. 8 The submission was
preceded by complaints by the Committee's Chairperson, Dr. Mita Pardo de Tavera. 9
On 21 October 1993, the Office of the President announced that it had given the respondent PGMC the gosignal to operate the country's on-line lottery system and that the corresponding implementing contract would
be submitted not later than 8 November 1993 "for final clearance and approval by the Chief Executive." 10 This
announcement was published in the Manila Standard, Philippine Daily Inquirer, and the Manila Times on 29
October 1993.11

1.4 Maintenance and Other Costs All costs and expenses relating to printing,
manpower, salaries and wages, advertising and promotion, maintenance, expansion and
replacement, security and insurance, and all other related expenses needed to operate an
On-Line Lottery System, which shall be for the account of the LESSOR. All expenses
relating to the setting-up, operation and maintenance of ticket sales offices of dealers
and retailers shall be borne by PCSO's dealers and retailers.
1.5 Development Plan The detailed plan of all games, the marketing thereof, number
of players, value of winnings and the logistics required to introduce the games,
including the Master Games Plan as approved by PCSO, attached hereto as Annex "A",
modified as necessary by the provisions of this Contract.

On 4 November 1993, KILOSBAYAN sent an open letter to Presidential Fidel V. Ramos strongly opposing the
setting up to the on-line lottery system on the basis of serious moral and ethical considerations. 12

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At the meeting of the Committee on Games and Amusements of the Senate on 12 November 1993,
KILOSBAYAN reiterated its vigorous opposition to the on-line lottery on account of its immorality and
illegality. 13

1.8 Escrow Deposit The proposal deposit in the sum of Three Hundred Million Pesos
(P300,000,000.00) submitted by the LESSOR to PCSO pursuant to the requirements of
the Request for Proposals.

On 19 November 1993, the media reported that despite the opposition, "Malacaang will push through with
the operation of an on-line lottery system nationwide" and that it is actually the respondent PCSO which will
operate the lottery while the winning corporate bidders are merely "lessors." 14

2. SUBJECT MATTER OF THE LEASE

On 1 December 1993, KILOSBAYAN requested copies of all documents pertaining to the lottery award from
Executive Secretary Teofisto Guingona, Jr. In his answer of 17 December 1993, the Executive Secretary
informed KILOSBAYAN that the requested documents would be duly transmitted before the end of the
month. 15. However, on that same date, an agreement denominated as "Contract of Lease" was finally executed
by respondent PCSO and respondent PGMC. 16 The President, per the press statement issued by the Office of
the President, approved it on 20 December 1993. 17

The LESSOR shall build, furnish and maintain at its own expense and risk the Facilities
for the On-Line Lottery System of PCSO in the Territory on an exclusive basis. The
LESSOR shall bear all Maintenance and Other Costs as defined herein.
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3. RENTAL FEE

1. DEFINITIONS

For and in consideration of the performance by the LESSOR of its obligations herein,
PCSO shall pay LESSOR a fixed Rental Fee equal to four point nine percent (4.9%) of
gross receipts from ticket sales, payable net of taxes required by law to be withheld, on a
semi-monthly basis. Goodwill, franchise and similar fees shall belong to PCSO.

The following words and terms shall have the following respective meanings:

4. LEASE PERIOD

1.1 Rental Fee Amount to be paid by PCSO to the LESSOR as compensation for the
fulfillment of the obligations of the LESSOR under this Contract, including, but not
limited to the lease of the Facilities.

The period of the lease shall commence ninety (90) days from the date of effectivity of
this Contract and shall run for a period of eight (8) years thereafter, unless sooner
terminated in accordance with this Contract.

In view of their materiality and relevance, we quote the following salient provisions of the Contract of Lease:

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5. RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF THE ON-LINE


LOTTERY SYSTEM

5.9 PCSO shall assist the LESSOR in the following:


5.9.1 Work permits for the LESSOR's staff;

PCSO shall be the sole and individual operator of the On-Line Lottery System.
Consequently:
5.1 PCSO shall have sole responsibility to decide whether to implement, fully or
partially, the Master Games Plan of the LESSOR. PCSO shall have the sole
responsibility to determine the time for introducing new games to the market. The
Master Games Plan included in Annex "A" hereof is hereby approved by PCSO.
5.2 PCSO shall have control over revenues and receipts of whatever nature from the OnLine Lottery System. After paying the Rental Fee to the LESSOR, PCSO shall have
exclusive responsibility to determine the Revenue Allocation Plan; Provided, that the
same shall be consistent with the requirement of R.A. No. 1169, as amended, which
fixes a prize fund of fifty five percent (55%) on the average.
5.3 PCSO shall have exclusive control over the printing of tickets, including but not
limited to the design, text, and contents thereof.
5.4 PCSO shall have sole responsibility over the appointment of dealers or retailers
throughout the country. PCSO shall appoint the dealers and retailers in a timely manner
with due regard to the implementation timetable of the On-Line Lottery System.
Nothing herein shall preclude the LESSOR from recommending dealers or retailers for
appointment by PCSO, which shall act on said recommendation within forty-eight (48)
hours.
5.5 PCSO shall designate the necessary personnel to monitor and audit the daily
performance of the On-Line Lottery System. For this purpose, PCSO designees shall be
given, free of charge, suitable and adequate space, furniture and fixtures, in all offices of
the LESSOR, including but not limited to its headquarters, alternate site, regional and
area offices.

5.9.2 Approvals for importation of the Facilities;


5.9.3 Approvals and consents for the On-Line Lottery System;
and
5.9.4 Business and premises licenses for all offices of the
LESSOR and licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or suspend the operation of
the On-Line Lottery System, in breach of this Contract and through no fault of the
LESSOR, PCSO shall promptly, and in any event not later than sixty (60) days,
reimburse the LESSOR the amount of its total investment cost associated with the OnLine Lottery System, including but not limited to the cost of the Facilities, and further
compensate the LESSOR for loss of expected net profit after tax, computed over the
unexpired term of the lease.
6. DUTIES AND RESPONSIBILITIES OF THE LESSOR
The LESSOR is one of not more than three (3) lessors of similar facilities for the
nationwide On-Line Lottery System of PCSO. It is understood that the rights of the
LESSOR are primarily those of a lessor of the Facilities, and consequently, all rights
involving the business aspects of the use of the Facilities are within the jurisdiction of
PCSO. During the term of the lease, the LESSOR shall.
6.1 Maintain and preserve its corporate existence, rights and privileges, and conduct its
business in an orderly, efficient, and customary manner.
6.2 Maintain insurance coverage with insurers acceptable to PCSO on all Facilities.

5.6 PCSO shall have the responsibility to resolve, and exclusive jurisdiction over, all
matters involving the operation of the On-Line Lottery System not otherwise provided
in this Contract.

6.3 Comply with all laws, statues, rules and regulations, orders and directives,
obligations and duties by which it is legally bound.

5.7 PCSO shall promulgate procedural and coordinating rules governing all activities
relating to the On-Line Lottery System.

6.4 Duly pay and discharge all taxes, assessments and government charges now and
hereafter imposed of whatever nature that may be legally levied upon it.

5.8 PCSO will be responsible for the payment of prize monies, commissions to agents
and dealers, and taxes and levies (if any) chargeable to the operator of the On-Line
Lottery System. The LESSOR will bear all other Maintenance and Other Costs, except
as provided in Section 1.4.

6.5 Keep all the Facilities in fail safe condition and, if necessary, upgrade, replace and
improve the Facilities from time to time as new technology develops, in order to make
the On-Line Lottery System more cost-effective and/or competitive, and as may be
required by PCSO shall not impose such requirements unreasonably nor arbitrarily.

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6.6 Provide PCSO with management terminals which will allow real-time monitoring of
the On-Line Lottery System.
6.7 Upon effectivity of this Contract, commence the training of PCSO and other local
personnel and the transfer of technology and expertise, such that at the end of the term
of this Contract, PCSO will be able to effectively take-over the Facilities and efficiently
operate the On-Line Lottery System.
6.8 Undertake a positive advertising and promotions campaign for both institutional and
product lines without engaging in negative advertising against other lessors.

7.4 The LESSOR has or has access to all the managerial and technical expertise to
promptly and effectively carry out the terms of this Contract. . . .
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10. TELECOMMUNICATIONS NETWORK
The LESSOR shall establish a telecommunications network that will connect all
municipalities and cities in the Territory in accordance with, at the LESSOR's option,
either of the LESSOR's proposals (or a combinations of both such proposals) attached
hereto as Annex "B," and under the following PCSO schedule:

6.9 Bear all expenses and risks relating to the Facilities including, but not limited to,
Maintenance and Other Costs and:
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6.10 Bear all risks if the revenues from ticket sales, on an annualized basis, are
insufficient to pay the entire prize money.
6.11 Be, and is hereby, authorized to collect and retain for its own account, a security
deposit from dealers and retailers, in an amount determined with the approval of PCSO,
in respect of equipment supplied by the LESSOR. PCSO's approval shall not be
unreasonably withheld.
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6.12 Comply with procedural and coordinating rules issued by PCSO.

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PCSO may, at its option, require the LESSOR to establish the telecommunications
network in accordance with the above Timetable in provinces where the LESSOR has
not yet installed terminals. Provided, that such provinces have existing nodes. Once a
municipality or city is serviced by land lines of a licensed public telephone company,
and such lines are connected to Metro Manila, then the obligation of the LESSOR to
connect such municipality or city through a telecommunications network shall cease
with respect to such municipality or city. The voice facility will cover the four offices of
the Office of the President, National Disaster Control Coordinating Council, Philippine
National Police and the National Bureau of Investigation, and each city and municipality
in the Territory except Metro Manila, and those cities and municipalities which have
easy telephone access from these four offices. Voice calls from the four offices shall be
transmitted via radio or VSAT to the remote municipalities which will be connected to
this voice facility through wired network or by radio. The facility shall be designed to
handle four private conversations at any one time.

7. REPRESENTATIONS AND WARRANTIES

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The LESSOR represents and warrants that:

13. STOCK DISPERSAL PLAN

7.1 The LESSOR is corporation duly organized and existing under the laws of the
Republic of the Philippines, at least sixty percent (60%) of the outstanding capital stock
of which is owned by Filipino shareholders. The minimum required Filipino equity
participation shall not be impaired through voluntary or involuntary transfer, disposition,
or sale of shares of stock by the present stockholders.

Within two (2) years from the effectivity of this Contract, the LESSOR shall cause itself
to be listed in the local stock exchange and offer at least twenty five percent (25%) of its
equity to the public.

7.2 The LESSOR and its Affiliates have the full corporate and legal power and authority
to own and operate their properties and to carry on their business in the place where
such properties are now or may be conducted. . . .

The LESSOR shall not, directly or indirectly, undertake any activity or business in
competition with or adverse to the On-Line Lottery System of PCSO unless it obtains
the latter's prior written consent thereto.

7.3 The LESSOR has or has access to all the financing and funding requirements to
promptly and effectively carry out the terms of this Contract. . . .

15. HOLD HARMLESS CLAUSE

14. NON-COMPETITION

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15.1 The LESSOR shall at all times protect and defend, at its cost and expense, PCSO
from and against any and all liabilities and claims for damages and/or suits for or by
reason of any deaths of, or any injury or injuries to any person or persons, or damages to
property of any kind whatsoever, caused by the LESSOR, its subcontractors, its
authorized agents or employees, from any cause or causes whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and hold PCSO harmless
from all liabilities, charges, expenses (including reasonable counsel fees) and costs on
account of or by reason of any such death or deaths, injury or injuries, liabilities, claims,
suits or losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR shall at all times protect and defend, at its own cost and expense, its
title to the facilities and PCSO's interest therein from and against any and all claims for
the duration of the Contract until transfer to PCSO of ownership of the serviceable
Facilities.
16. SECURITY
16.1 To ensure faithful compliance by the LESSOR with the terms of the Contract, the
LESSOR shall secure a Performance Bond from a reputable insurance company or
companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three Hundred Million
Pesos (P300,000,000.00), to its U.S. dollar equivalent, and shall be renewed to cover the
duration of the Contract. However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered terminals installed; Provided, that
the Performance Bond shall in no case be less than One Hundred Fifty Million Pesos
(P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as the Performance
Bond. . . .
17. PENALTIES
17.1 Except as may be provided in Section 17.2, should the LESSOR fail to take
remedial measures within seven (7) days, and rectify the breach within thirty (30) days,
from written notice by PCSO of any wilfull or grossly negligent violation of the material
terms and conditions of this Contract, all unencumbered Facilities shall automatically
become the property of PCSO without consideration and without need for further notice
or demand by PCSO. The Performance Bond shall likewise be forfeited in favor of
PCSO.
17.2 Should the LESSOR fail to comply with the terms of the Timetables provided in
Section 9 and 10, it shall be subject to an initial Penalty of Twenty Thousand Pesos
(P20,000.00), per city or municipality per every month of delay; Provided, that the
Penalty shall increase, every ninety (90) days, by the amount of Twenty Thousand Pesos

(P20,000.00) per city or municipality per month, whilst shall failure to comply persists.
The penalty shall be deducted by PCSO from the rental fee.
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20. OWNERSHIP OF THE FACILITIES
After expiration of the term of the lease as provided in Section 4, the Facilities directly
required for the On-Line Lottery System mentioned in Section 1.3 shall automatically
belong in full ownership to PCSO without any further consideration other than the
Rental Fees already paid during the effectivity of the lease.
21. TERMINATION OF THE LEASE
PCSO may terminate this Contract for any breach of the material provisions of this
Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its debts, stops or suspends
or threatens to stop or suspend payment of all or a material part of its debts, or proposes
or makes a general assignment or an arrangement or compositions with or for the benefit
of its creditors; or
21.2 An order is made or an effective resolution passed for the winding up or dissolution
of the LESSOR or when it ceases or threatens to cease to carry on all or a material part
of its operations or business; or
21.3 Any material statement, representation or warranty made or furnished by the
LESSOR proved to be materially false or misleading;
said termination to take effect upon receipt of written notice of
termination by the LESSOR and failure to take remedial action
within seven (7) days and cure or remedy the same within thirty
(30) days from notice.
Any suspension, cancellation or termination of this Contract shall
not relieve the LESSOR of any liability that may have already
accrued hereunder.
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Considering the denial by the Office of the President of its protest and the statement of Assistant Executive
Secretary Renato Corona that "only a court injunction can stop Malacaang," and the imminent
implementation of the Contract of Lease in February 1994, KILOSBAYAN, with its co-petitioners, filed on 28
January 1994 this petition.

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In support of the petition, the petitioners claim that:


. . . X X THE OFFICE OF THE PRESIDENT, ACTING
THROUGH RESPONDENTS EXECUTIVE SECRETARY
AND/OR ASSISTANT EXECUTIVE SECRETARY FOR
LEGAL AFFAIRS, AND THE PCSO GRAVELY ABUSE[D]
THEIR DISCRETION AND/OR FUNCTIONS TANTAMOUNT
TO LACK OF JURISDICTION AND/OR AUTHORITY IN
RESPECTIVELY: (A) APPROVING THE AWARD OF THE
CONTRACT TO, AND (B) ENTERING INTO THE SOCALLED "CONTRACT OF LEASE" WITH, RESPONDENT
PGMC FOR THE INSTALLATION, ESTABLISHMENT AND
OPERATION OF THE ON-LINE LOTTERY AND
TELECOMMUNICATION SYSTEMS REQUIRED AND/OR
AUTHORIZED UNDER THE SAID CONTRACT,
CONSIDERING THAT:
a) Under Section 1 of the Charter of the PCSO, the PCSO is prohibited from holding
and conducting lotteries "in collaboration, association or joint venture with any person,
association, company or entity";
b) Under Act No. 3846 and established jurisprudence, a Congressional franchise is
required before any person may be allowed to establish and operate said
telecommunications system;
c) Under Section 11, Article XII of the Constitution, a less than 60% Filipino-owned
and/or controlled corporation, like the PGMC, is disqualified from operating a public
service, like the said telecommunications system; and
d) Respondent PGMC is not authorized by its charter and under the Foreign Investment
Act (R.A. No. 7042) to install, establish and operate the on-line lotto and
telecommunications systems. 18
Petitioners submit that the PCSO cannot validly enter into the assailed Contract of Lease with the PGMC
because it is an arrangement wherein the PCSO would hold and conduct the on-line lottery system in
"collaboration" or "association" with the PGMC, in violation of Section 1(B) of R.A. No. 1169, as amended by
B.P. Blg. 42, which prohibits the PCSO from holding and conducting charity sweepstakes races, lotteries, and
other similar activities "in collaboration, association or joint venture with any person, association, company or
entity, foreign or domestic." Even granting arguendo that a lease of facilities is not within the contemplation of
"collaboration" or "association," an analysis, however, of the Contract of Lease clearly shows that there is a
"collaboration, association, or joint venture between respondents PCSO and PGMC in the holding of the OnLine Lottery System," and that there are terms and conditions of the Contract "showing that respondent PGMC
is the actual lotto operator and not respondent PCSO." 19
The petitioners also point out that paragraph 10 of the Contract of Lease requires or authorizes PGMC to
establish a telecommunications network that will connect all the municipalities and cities in the territory.

However, PGMC cannot do that because it has no franchise from Congress to construct, install, establish, or
operate the network pursuant to Section 1 of Act No. 3846, as amended. Moreover, PGMC is a 75% foreignowned or controlled corporation and cannot, therefore, be granted a franchise for that purpose because of
Section 11, Article XII of the 1987 Constitution. Furthermore, since "the subscribed foreign capital" of the
PGMC "comes to about 75%, as shown by paragraph EIGHT of its Articles of Incorporation," it cannot
lawfully enter into the contract in question because all forms of gambling and lottery is one of them are
included in the so-called foreign investments negative list under the Foreign Investments Act (R.A. No. 7042)
where only up to 40% foreign capital is allowed. 20
Finally, the petitioners insist that the Articles of Incorporation of PGMC do not authorize it to establish and
operate an on-line lottery and telecommunications systems. 21
Accordingly, the petitioners pray that we issue a temporary restraining order and a writ of preliminary
injunction commanding the respondents or any person acting in their places or upon their instructions to cease
and desist from implementing the challenged Contract of Lease and, after hearing the merits of the petition,
that we render judgment declaring the Contract of Lease void and without effect and making the injunction
permanent. 22
We required the respondents to comment on the petition.
In its Comment filed on 1 March 1994, private respondent PGMC asserts that "(1) [it] is merely an
independent contractor for a piece of work, (i.e., the building and maintenance of a lottery system to be used
by PCSO in the operation of its lottery franchise); and (2) as such independent contractor, PGMC is not a cooperator of the lottery franchise with PCSO, nor is PCSO sharing its franchise, 'in collaboration, association or
joint venture' with PGMC as such statutory limitation is viewed from the context, intent, and spirit of
Republic Act 1169, as amended by Batas Pambansa 42." It further claims that as an independent contractor for
a piece of work, it is neither engaged in "gambling" nor in "public service" relative to the telecommunications
network, which the petitioners even consider as an "indispensable requirement" of an on-line lottery system.
Finally, it states that the execution and implementation of the contract does not violate the Constitution and the
laws; that the issue on the "morality" of the lottery franchise granted to the PCSO is political and not judicial
or legal, which should be ventilated in another forum; and that the "petitioners do not appear to have the legal
standing or real interest in the subject contract and in obtaining the reliefs sought." 23
In their Comment filed by the Office of the Solicitor General, public respondents Executive Secretary Teofisto
Guingona, Jr., Assistant Executive Secretary Renato Corona, and the PCSO maintain that the contract of lease
in question does not violate Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and that the petitioner's
interpretation of the phrase "in collaboration, association or joint venture" in Section 1 is "much too narrow,
strained and utterly devoid of logic" for it "ignores the reality that PCSO, as a corporate entity, is vested with
the basic and essential prerogative to enter into all kinds of transactions or contracts as may be necessary for
the attainment of its purposes and objectives." What the PCSO charter "seeks to prohibit is that arrangement
akin to a "joint venture" or partnership where there is "community of interest in the business, sharing of profits
and losses, and a mutual right of control," a characteristic which does not obtain in a contract of lease." With
respect to the challenged Contract of Lease, the "role of PGMC is limited to that of a lessor of the facilities"
for the on-line lottery system; in "strict technical and legal sense," said contract "can be categorized as a
contract for a piece of work as defined in Articles 1467, 1713 and 1644 of the Civil Code."

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They further claim that the establishment of the telecommunications system stipulated in the Contract of Lease
does not require a congressional franchise because PGMC will not operate a public utility; moreover, PGMC's
"establishment of a telecommunications system is not intended to establish a telecommunications business,"
and it has been held that where the facilities are operated "not for business purposes but for its own use," a
legislative franchise is not required before a certificate of public convenience can be granted. 24 Even
granting arguendo that PGMC is a public utility, pursuant to Albano S.
Reyes, 25 "it can establish a telecommunications system even without a legislative franchise because not every
public utility is required to secure a legislative franchise before it could establish, maintain, and operate the
service"; and, in any case, "PGMC's establishment of the telecommunications system stipulated in its contract
of lease with PCSO falls within the exceptions under Section 1 of Act No. 3846 where a legislative franchise is
not necessary for the establishment of radio stations."
They also argue that the contract does not violate the Foreign Investment Act of 1991; that the Articles of
Incorporation of PGMC authorize it to enter into the Contract of Lease; and that the issues of "wisdom,
morality and propriety of acts of the executive department are beyond the ambit of judicial review."
Finally, the public respondents allege that the petitioners have no standing to maintain the instant suit, citing
our resolution in Valmonte vs. Philippine Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners in this case, 27 but only the motion of Senators Alberto
Romulo, Arturo Tolentino, Francisco Tatad, Gloria Macapagal-Arroyo, Vicente Sotto III, John Osmea,
Ramon Revilla, and Jose Lina 28 was granted, and the respondents were required to comment on their petition
in intervention, which the public respondents and PGMC did.
In the meantime, the petitioners filed with the Securities and Exchange Commission on 29 March 1994 a
petition against PGMC for the nullification of the latter's General Information Sheets. That case, however, has
no bearing in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter, we resolved to consider the matter
submitted for resolution and pending resolution of the major issues in this case, to issue a temporary
restraining order commanding the respondents or any person acting in their place or upon their instructions to
cease and desist from implementing the challenged Contract of Lease.
In the deliberation on this case on 26 April 1994, we resolved to consider only these issues: (a) the locus
standi of the petitioners, and (b) the legality and validity of the Contract of Lease in the light of Section 1 of
R.A. No. 1169, as amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries
"in collaboration, association or joint venture with any person, association, company or entity, whether
domestic or foreign." On the first issue, seven Justices voted to sustain the locus standi of the petitioners, while
six voted not to. On the second issue, the seven Justices were of the opinion that the Contract of Lease violates
the exception to Section 1(B) of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid and
contrary to law. The six Justices stated that they wished to express no opinion thereon in view of their stand on
the first issue. The Chief Justice took no part because one of the Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the writing of the opinion of the Court.

The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor. A party's
standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside
in view of the importance of the issues raised. In the landmark Emergency Powers Cases, 29 this Court brushed
aside this technicality because "the transcendental importance to the public of these cases demands that they be
settled promptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs.
Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is not
devoid of discretion as to whether or not it should be entertained," 30 or that it "enjoys an open discretion to
entertain the same or not." 31 In De La Llana vs. Alba, 32 this Court declared:
1. The argument as to the lack of standing of petitioners is easily resolved. As far as
Judge de la Llana is concerned, he certainly falls within the principle set forth in Justice
Laurel's opinion in People vs. Vera [65 Phil. 56 (1937)]. Thus: "The unchallenged rule is
that the person who impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement [Ibid, 89]. The other petitioners as members of the bar and
officers of the court cannot be considered as devoid of "any personal and substantial
interest" on the matter. There is relevance to this excerpt from a separate opinion
inAquino, Jr. v. Commission on Elections [L-40004, January 31, 1975, 62 SCRA 275]:
"Then there is the attack on the standing of petitioners, as vindicating at most what they
consider a public right and not protecting their rights as individuals. This is to conjure
the specter of the public right dogma as an inhibition to parties intent on keeping public
officials staying on the path of constitutionalism. As was so well put by Jaffe; "The
protection of private rights is an essential constituent of public interest and, conversely,
without a well-ordered state there could be no enforcement of private rights. Private and
public interests are, both in a substantive and procedural sense, aspects of the totality of
the legal order." Moreover, petitioners have convincingly shown that in their capacity as
taxpayers, their standing to sue has been amply demonstrated. There would be a retreat
from the liberal approach followed in Pascual v. Secretary of Public Works,
foreshadowed by the very decision of People v. Vera where the doctrine was first fully
discussed, if we act differently now. I do not think we are prepared to take that step.
Respondents, however, would hard back to the American Supreme Court doctrine
in Mellon v. Frothingham, with their claim that what petitioners possess "is an interest
which is shared in common by other people and is comparatively so minute and
indeterminate as to afford any basis and assurance that the judicial process can act on
it." That is to speak in the language of a bygone era, even in the United States. For as
Chief Justice Warren clearly pointed out in the later case of Flast v. Cohen, the barrier
thus set up if not breached has definitely been lowered.
In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 33 reiterated in Basco vs.
Philippine Amusements and Gaming Corporation, 34 this Court stated:
Objections to taxpayers' suits 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, this Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.

205

and in Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 35 it
declared:
With particular regard to the requirement of proper party as applied in the cases before
us, we hold that the same is satisfied by the petitioners and intervenors because each of
them has sustained or is in danger of sustaining an immediate injury as a result of the
acts or measures complained of. [Ex Parte Levitt, 303 US 633]. And even if, strictly
speaking, they are not covered by the definition, it is still within the wide discretion of
the Court to waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to
question the constitutionality of several executive orders issued by President Quirino
although they were invoking only an indirect and general interest shared in common
with the public. The Court dismissed the objective that they were not proper parties and
ruled that the transcendental importance to the public of these cases demands that they
be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure. We have since then applied this exception in many other cases. (Emphasis
supplied)
In Daza vs. Singson, 36 this Court once more said:
. . . For another, we have early as in the Emergency Powers Cases that where serious
constitutional questions are involved, "the transcendental importance to the public of
these cases demands that they be settled promptly and definitely, brushing aside, if we
must, technicalities of procedure." The same policy has since then been consistently
followed by the Court, as in Gonzales vs. Commission on Elections [21 SCRA 774] . . .
The Federal Supreme Court of the United States of America has also expressed its discretionary power to
liberalize the rule on locus standi. In United States vs. Federal Power Commission and Virginia Rea
Association vs. Federal Power Commission, 37 it held:
We hold that petitioners have standing. Differences of view, however, preclude a single
opinion of the Court as to both petitioners. It would not further clarification of this
complicated specialty of federal jurisdiction, the solution of whose problems is in any
event more or less determined by the specific circumstances of individual situations, to
set out the divergent grounds in support of standing in these cases.
In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and even
association of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before
this Court to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various
government agencies or instrumentalities. Among such cases were those assailing the constitutionality of (a)
R.A. No. 3836 insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators
and Representatives and to elective officials of both Houses of Congress; 38 (b) Executive Order No. 284,
issued by President Corazon C. Aquino on 25 July 1987, which allowed members of the cabinet, their
undersecretaries, and assistant secretaries to hold other government offices or positions; 39 (c) the automatic

appropriation for debt service in the General Appropriations Act; 40 (d) R.A. No. 7056 on the holding of
desynchronized elections; 41 (d) R.A. No. 1869 (the charter of the Philippine Amusement and Gaming
Corporation) on the ground that it is contrary to morals, public policy, and order; 42 and (f) R.A. No. 6975,
establishing the Philippine National
Police. 43
Other cases where we have followed a liberal policy regarding locus standi include those attacking the validity
or legality of (a) an order allowing the importation of rice in the light of the prohibition imposed by R.A. No.
3452; 44(b) P.D. Nos. 991 and 1033 insofar as they proposed amendments to the Constitution and P.D. No.
1031 insofar as it directed the COMELEC to supervise, control, hold, and conduct the referendum-plebiscite
on 16 October 1976; 45 (c) the bidding for the sale of the 3,179 square meters of land at Roppongi, Minato-ku,
Tokyo, Japan; 46 (d) the approval without hearing by the Board of Investments of the amended application of
the Bataan Petrochemical Corporation to transfer the site of its plant from Bataan to Batangas and the validity
of such transfer and the shift of feedstock from naphtha only to naphtha and/or liquefied petroleum gas; 47 (e)
the decisions, orders, rulings, and resolutions of the Executive Secretary, Secretary of Finance, Commissioner
of Internal Revenue, Commissioner of Customs, and the Fiscal Incentives Review Board exempting the
National Power Corporation from indirect tax and duties; 48 (f) the orders of the Energy Regulatory Board of 5
and 6 December 1990 on the ground that the hearings conducted on the second provisional increase in oil
prices did not allow the petitioner substantial cross-examination; 49 (g) Executive Order No. 478 which levied a
special duty of P0.95 per liter or P151.05 per barrel of imported crude oil and P1.00 per liter of imported oil
products; 50 (h) resolutions of the Commission on Elections concerning the apportionment, by district, of the
number of elective members of Sanggunians;51 and (i) memorandum orders issued by a Mayor affecting the
Chief of Police of Pasay City. 52
In the 1975 case of Aquino vs. Commission on Elections, 53 this Court, despite its unequivocal ruling that the
petitioners therein had no personality to file the petition, resolved nevertheless to pass upon the issues raised
because of the far-reaching implications of the petition. We did no less in De Guia vs. COMELEC 54 where,
although we declared that De Guia "does not appear to have locus standi, a standing in law, a personal or
substantial interest," we brushed aside the procedural infirmity "considering the importance of the issue
involved, concerning as it does the political exercise of qualified voters affected by the apportionment, and
petitioner alleging abuse of discretion and violation of the Constitution by respondent."
We find the instant petition to be of transcendental importance to the public. The issues it raised are of
paramount public interest and of a category even higher than those involved in many of the aforecited cases.
The ramifications of such issues immeasurably affect the social, economic, and moral well-being of the people
even in the remotest barangays of the country and the counter-productive and retrogressive effects of the
envisioned on-line lottery system are as staggering as the billions in pesos it is expected to raise. The legal
standing then of the petitioners deserves recognition and, in the exercise of its sound discretion, this Court
hereby brushes aside the procedural barrier which the respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amending by B.P. Blg. 42, prohibits the PCSO from holding and conducting
lotteries "in collaboration, association or joint venture with any person, association, company or entity,
whether domestic or foreign." Section 1 provides:

206

Sec. 1. The Philippine Charity Sweepstakes Office. The Philippine Charity


Sweepstakes Office, hereinafter designated the Office, shall be the principal government
agency for raising and providing for funds for health programs, medical assistance and
services and charities of national character, and as such shall have the general powers
conferred in section thirteen of Act Numbered One thousand four hundred fifty-nine, as
amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries and
other similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B. Subject to the approval of the Minister of Human Settlements,
to engage in health and welfare-related investments,
programs, projects and activities which may be profitoriented, by itself or in collaboration, association or joint
venture with any person, association, company or entity, whether
domestic or foreign, except for the activities mentioned in the
preceding paragraph (A), for the purpose of providing for
permanent and continuing sources of funds for health programs,
including the expansion of existing ones, medical assistance and
services, and/or charitable grants: Provided, That such investment
will not compete with the private sector in areas where
investments are adequate as may be determined by the National
Economic and Development Authority. (emphasis supplied)

Subject to the approval of the Minister of Human Settlements, to engage in healthoriented investments, programs, projects and activities which may be profit- oriented, by
itself or in collaboration, association, or joint venture with any person, association,
company or entity, whether domestic or foreign, for the purpose of providing for
permanent and continuing sources of funds for health programs, including the expansion
of existing ones, medical assistance and services and/or charitable grants. 56
Before the motion of Assemblyman Zamora for the approval of the amendment could be acted upon,
Assemblyman Davide introduced an amendment to the amendment:
MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.
May I introduce an amendment to the
committee amendment? The amendment
would be to insert after "foreign" in the
amendment just read the following:
EXCEPT FOR THE ACTIVITY IN
LETTER (A) ABOVE.

The language of the section is indisputably clear that with respect to its franchise or privilege "to hold and
conduct charity sweepstakes races, lotteries and other similar activities," the PCSO cannot exercise it "in
collaboration, association or joint venture" with any other party. This is the unequivocal meaning and import of
the phrase "except for the activities mentioned in the preceding paragraph (A)," namely, "charity sweepstakes
races, lotteries and other similar activities."

When it is joint venture or in collaboration


with any entity such collaboration or joint
venture must not include activity activity
letter (a) which is the holding and
conducting of sweepstakes races, lotteries
and other similar acts.

B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was covered by Committee Report No. 103 as
reported out by the Committee on Socio-Economic Planning and Development of the Interim Batasang
Pambansa. The original text of paragraph B, Section 1 of Parliamentary Bill No. 622 reads as follows:
To engage in any and all investments and related profit-oriented projects or programs
and activities by itself or in collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, for the main purpose of
raising funds for health and medical assistance and services and charitable grants. 55

MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.

During the period of committee amendments, the Committee on Socio-Economic Planning and Development,
through Assemblyman Ronaldo B. Zamora, introduced an amendment by substitution to the said paragraph B
such that, as amended, it should read as follows:

Thank you, Mr. Speaker.


THE SPEAKER.

207

Is there any objection to the amendment?


(Silence) The amendment, as amended, is
approved. 57
Further amendments to paragraph B were introduced and approved. When Assemblyman Zamora read the final
text of paragraph B as further amended, the earlier approved amendment of Assemblyman Davide became
"EXCEPT FOR THE ACTIVITIES MENTIONED IN PARAGRAPH (A)"; and by virtue of the amendment
introduced by Assemblyman Emmanuel Pelaez, the word PRECEDING was inserted before PARAGRAPH.
Assemblyman Pelaez introduced other amendments. Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42.
No interpretation of the said provision to relax or circumvent the prohibition can be allowed since the privilege
to hold or conduct charity sweepstakes races, lotteries, or other similar activities is a franchise granted by the
legislature to the PCSO. It is a settled rule that "in all grants by the government to individuals or corporations
of rights, privileges and franchises, the words are to be taken most strongly against the grantee .... [o]ne who
claims a franchise or privilege in derogation of the common rights of the public must prove his title thereto by
a grant which is clearly and definitely expressed, and he cannot enlarge it by equivocal or doubtful provisions
or by probable inferences. Whatever is not unequivocally granted is withheld. Nothing passes by mere
implication." 59
In short then, by the exception explicitly made in paragraph B, Section 1 of its charter, the PCSO cannot share
its franchise with another by way of collaboration, association or joint venture. Neither can it assign, transfer,
or lease such franchise. It has been said that "the rights and privileges conferred under a franchise may, without
doubt, be assigned or transferred when the grant is to the grantee and assigns, or is authorized by statute. On
the other hand, the right of transfer or assignment may be restricted by statute or the constitution, or be made
subject to the approval of the grantor or a governmental agency, such as a public utilities commission,
exception that an existing right of assignment cannot be impaired by subsequent legislation." 60
It may also be pointed out that the franchise granted to the PCSO to hold and conduct lotteries allows it to hold
and conduct a species of gambling. It is settled that "a statute which authorizes the carrying on of a gambling
activity or business should be strictly construed and every reasonable doubt so resolved as to limit the powers
and rights claimed under its authority." 61
Does the challenged Contract of Lease violate or contravene the exception in Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, which prohibits the PCSO from holding and conducting lotteries "in collaboration,
association or joint venture with" another?
We agree with the petitioners that it does, notwithstanding its denomination or designation as a (Contract of
Lease). We are neither convinced nor moved or fazed by the insistence and forceful arguments of the PGMC
that it does not because in reality it is only an independent contractor for a piece of work, i.e., the building and
maintenance of a lottery system to be used by the PCSO in the operation of its lottery franchise. Whether the
contract in question is one of lease or whether the PGMC is merely an independent contractor should not be
decided on the basis of the title or designation of the contract but by the intent of the parties, which may be
gathered from the provisions of the contract itself. Animus hominis est anima scripti. The intention of the party
is the soul of the instrument. In order to give life or effect to an instrument, it is essential to look to the

intention of the individual who executed it. 62 And, pursuant to Article 1371 of the Civil Code, "to determine
the intention of the contracting parties, their contemporaneous and subsequent acts shall be principally
considered." To put it more bluntly, no one should be deceived by the title or designation of a contract.
A careful analysis and evaluation of the provisions of the contract and a consideration of the contemporaneous
acts of the PCSO and PGMC indubitably disclose that the contract is not in reality a contract of lease under
which the PGMC is merely an independent contractor for a piece of work, but one where the statutorily
proscribedcollaboration or association, in the least, or joint venture, at the most, exists between the contracting
parties.Collaboration is defined as the acts of working together in a joint project. 63 Association means the act
of a number of persons in uniting together for some special purpose or business. 64 Joint venture is defined as
an association of persons or companies jointly undertaking some commercial enterprise; generally all
contribute assets and share risks. It requires a community of interest in the performance of the subject matter, a
right to direct and govern the policy in connection therewith, and duty, which may be altered by agreement to
share both in profit and
losses. 65
The contemporaneous acts of the PCSO and the PGMC reveal that the PCSO had neither funds of its own nor
the expertise to operate and manage an on-line lottery system, and that although it wished to have the system,
it would have it "at no expense or risks to the government." Because of these serious constraints and
unwillingness to bear expenses and assume risks, the PCSO was candid enough to state in its RFP that it is
seeking for "a suitable contractor which shall build, at its own expense, all the facilities needed to operate and
maintain" the system; exclusively bear "all capital, operating expenses and expansion expenses and risks"; and
submit "a comprehensive nationwide lottery development plan . . . which will include the game, the marketing
of the games, and the logistics to introduce the game to all the cities and municipalities of the country within
five (5) years"; and that the operation of the on-line lottery system should be "at no expense or risk to the
government" meaningitself, since it is a government-owned and controlled agency. The facilities referred to
means "all capital equipment, computers, terminals, software, nationwide telecommunications network, ticket
sales offices, furnishings and fixtures, printing costs, costs of salaries and wages, advertising and promotions
expenses, maintenance costs, expansion and replacement costs, security and insurance, and all other related
expenses needed to operate a nationwide on-line lottery system."
In short, the only contribution the PCSO would have is its franchise or authority to operate the on-line lottery
system; with the rest, including the risks of the business, being borne by the proponent or bidder. It could be
for this reason that it warned that "the proponent must be able to stand to the acid test of proving that it is an
entity able to take on the role of responsible maintainer of the on-line lottery system." The PCSO, however,
makes it clear in its RFP that the proponent can propose a period of the contract which shall not exceed fifteen
years, during which time it is assured of a "rental" which shall not exceed 12% of gross receipts. As admitted
by the PGMC, upon learning of the PCSO's decision, the Berjaya Group Berhad, with its affiliates, wanted to
offer itsservices and resources to the PCSO. Forthwith, it organized the PGMC as "a medium through which
the technical and management services required for the project would be offered and delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all along that in connection with an on-line lottery system,
the PCSO had nothing but its franchise, which it solemnly guaranteed it had in the General Information of the
RFP. 67Howsoever viewed then, from the very inception, the PCSO and the PGMC mutually understood that
any arrangement between them would necessarily leave to the PGMC the technical, operations, and
management aspects of the on-line lottery system while the PCSO would, primarily, provide the franchise. The
words Gaming and Management in the corporate name of respondent Philippine Gaming Management

208

Corporation could not have been conceived just for euphemistic purposes. Of course, the RFP cannot substitute
for the Contract of Lease which was subsequently executed by the PCSO and the PGMC. Nevertheless, the
Contract of Lease incorporates their intention and understanding.
The so-called Contract of Lease is not, therefore, what it purports to be. Its denomination as such is a crafty
device, carefully conceived, to provide a built-in defense in the event that the agreement is questioned as
violative of the exception in Section 1 (B) of the PCSO's charter. The acuity or skill of its draftsmen to
accomplish that purpose easily manifests itself in the Contract of Lease. It is outstanding for its careful and
meticulous drafting designed to give an immediate impression that it is a contract of lease. Yet, woven therein
are provisions which negate its title and betray the true intention of the parties to be in or to have a joint
venture for a period of eight years in the operation and maintenance of the on-line lottery system.
Consistent with the above observations on the RFP, the PCSO has only its franchise to offer, while the PGMC
represents and warrants that it has access to all managerial and technical expertise to promptly and effectively
carry out the terms of the contract. And, for a period of eight years, the PGMC is under obligation to keep all
theFacilities in safe condition and if necessary, upgrade, replace, and improve them from time to time as new
technology develops to make the on-line lottery system more cost-effective and competitive; exclusively bear
all costs and expenses relating to the printing, manpower, salaries and wages, advertising and promotion,
maintenance, expansion and replacement, security and insurance, and all other related expenses needed to
operate the on-line lottery system; undertake a positive advertising and promotions campaign for both
institutional and product lines without engaging in negative advertising against other lessors; bear the salaries
and related costs of skilled and qualified personnel for administrative and technical operations; comply
with procedural and coordinating rules issued by the PCSO; and to train PCSO and other local personnel and
to effect the transfer of technology and other expertise, such that at the end of the term of the contract, the
PCSO will be able to effectively take over the Facilities and efficiently operate the on-line lottery system. The
latter simply means that, indeed, the managers, technicians or employees who shall operate the on-line lottery
system are not managers, technicians or employees of the PCSO, but of the PGMC and that it is only after the
expiration of the contract that the PCSO will operate the system. After eight years, the PCSO would
automatically become the owner of the Facilities without any other further consideration.
For these reasons, too, the PGMC has the initial prerogative to prepare the detailed plan of all games and the
marketing thereof, and determine the number of players, value of winnings, and the logistics required to
introduce the games, including the Master Games Plan. Of course, the PCSO has the reserved authority to
disapprove them. 68 And, while the PCSO has the sole responsibility over the appointment of dealers and
retailers throughout the country, the PGMC may, nevertheless, recommend for appointment dealers and
retailers which shall be acted upon by the PCSO within forty-eight hours and collect and retain, for its own
account, a security deposit from dealers and retailers in respect of equipment supplied by it.
This joint venture is further established by the following:
(a) Rent is defined in the lease contract as the amount to be paid to the PGMC as compensation for the
fulfillment of its obligations under the contract, including, but not limited to the lease of the Facilities.
However, this rent is not actually a fixed amount. Although it is stated to be 4.9% of gross receipts from ticket
sales, payable net of taxes required by law to be withheld, it may be drastically reduced or, in extreme cases,
nothing may be due or demandable at all because the PGMC binds itself to "bear all risks if the revenue from
the ticket sales, on an annualized basis, are insufficient to pay the entire prize money." This risk-bearing
provision is unusual in a lessor-lessee relationship, but inherent in a joint venture.

(b) In the event of pre-termination of the contract by the PCSO, or its suspension of operation of the on-line
lottery system in breach of the contract and through no fault of the PGMC, the PCSO binds itself "to promptly,
and in any event not later than sixty (60) days, reimburse the Lessor the amount of its total investment cost
associated with the On-Line Lottery System, including but not limited to the cost of the Facilities, and further
compensate the LESSOR for loss of expected net profit after tax, computed over the unexpired term of the
lease." If the contract were indeed one of lease, the payment of the expected profits or rentals for the unexpired
portion of the term of the contract would be enough.
(c) The PGMC cannot "directly or indirectly undertake any activity or business in competition with or adverse
to the On-Line Lottery System of PCSO unless it obtains the latter's prior written consent." If the PGMC is
engaged in the business of leasing equipment and technology for an on-line lottery system, we fail to see any
acceptable reason why it should allow a restriction on the pursuit of such business.
(d) The PGMC shall provide the PCSO the audited Annual Report sent to its stockholders, and within two
years from the effectivity of the contract, cause itself to be listed in the local stock exchange and offer at least
25% of its equity to the public. If the PGMC is merely a lessor, this imposition is unreasonable and whimsical,
and could only be tied up to the fact that the PGMC will actually operate and manage the system; hence,
increasing public participation in the corporation would enhance public interest.
(e) The PGMC shall put up an Escrow Deposit of P300,000,000.00 pursuant to the requirements of the RFP,
which it may, at its option, maintain as its initial performance bond required to ensure its faithful compliance
with the terms of the contract.
(f) The PCSO shall designate the necessary personnel to monitor and audit the daily performance of the on-line
lottery system; and promulgate procedural and coordinating rules governing all activities relating to the online lottery system. The first further confirms that it is the PGMC which will operate the system and the PCSO
may, for the protection of its interest, monitor and audit the daily performance of the system. The second
admits thecoordinating and cooperative powers and functions of the parties.
(g) The PCSO may validly terminate the contract if the PGMC becomes insolvent or bankrupt or is unable to
pay its debts, or if it stops or suspends or threatens to stop or suspend payment of all or a material part of its
debts.
All of the foregoing unmistakably confirm the indispensable role of the PGMC in the pursuit, operation,
conduct, and management of the On-Line Lottery System. They exhibit and demonstrate the parties' indivisible
community of interest in the conception, birth and growth of the on-line lottery, and, above all, in its profits,
with each having a right in the formulation and implementation of policies related to the business and sharing,
as well, in the losses with the PGMC bearing the greatest burden because of its assumption of expenses and
risks, and the PCSO the least, because of its confessed unwillingness to bear expenses and risks. In a manner
of speaking, each is wed to the other for better or for worse. In the final analysis, however, in the light of the
PCSO's RFP and the above highlighted provisions, as well as the "Hold Harmless Clause" of the Contract of
Lease, it is even safe to conclude that the actual lessor in this case is the PCSO and the subject matter thereof
is its franchise to hold and conduct lotteries since it is, in reality, the PGMC which operates and manages the
on-line lottery system for a period of eight years.

209

We thus declare that the challenged Contract of Lease violates the exception provided for in paragraph B,
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, and is, therefore, invalid for being contrary to law.
This conclusion renders unnecessary further discussion on the other issues raised by the petitioners.
WHEREFORE, the instant petition is hereby GRANTED and the challenged Contract of Lease executed on 17
December 1993 by respondent Philippine Charity Sweepstakes Office (PCSO) and respondent Philippine
Gaming Management Corporation (PGMC) is hereby DECLARED contrary to law and invalid.
The Temporary Restraining Order issued on 11 April 1994 is hereby MADE PERMANENT.
No pronouncement as to costs.
SO ORDERED.

ITF VS COMELEC

DAVID CASTILLO, ARSENIO


SARMIENTO, ELIZABETH SY,
METODIO
NAVASCA, HELEN VIRTUDAZO, IRENE
LIMBAGA, SYLVIA BUSTAMANTE, JUANA
DACALUS, NELLIE RICAMORA, JUDITH
ESPINOSA,
PAZ
KUDERA,
EVELYN PANES, AGATON
BULICATIN,
PRESCILLA GARCIA, ROSALIA OLITAO,
LUZVIMINDA AVILA,
GLORIA OLAIR,
LORITA MENCIAS,RENATO ARIETA, EDITHA
ACUZAR, LEONARDA VILLACAMPA, ELIAS
JARDINICO,
BOBINO NAMUAG, FELIMON
NAMUAG,
EDGAR
CABUNOC,
HELEN
ARGUELLES, HELEN ANG, FELECIDAD
PRIETO,
LUISITO
GRECIA,LILIBETH
PARING, RUBEN CAMACHO, ROSALINDA
LALUNA,
LUZ
YAP,
ROGELIO
LAPUT, ROSEMARIE WEE,
TACOTCHE
RANAIN, AVELINO
DELOS
REYES
and
ROGASIANO OROPEZA,
Respondents. Promulgated:
September 21, 2005

http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/159139.htm
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
JUMAMIL VS CAFE

DECISION
CORONA, J.:

THIRD DIVISION
VIVENCIO V. JUMAMIL, G.R. No. 144570
Petitioner,
Present:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioner Vivencio V. Jumamil
PANGANIBAN, J., Chairman,

- versus - SANDOVAL-GUTIERREZ,
CORONA,
CARPIO MORALES, and

seeks to reverse the decision of the Court of Appeals dated July 24, 2000 [1] in CA-G.R. CV No. 35082, the
GARCIA, JJ.

JOSE J. CAFE, GLICERIO L.


ALERIA, RUDY G. ADLAON,
DAMASCENO
AGUIRRE,
RAMON
PARING,
MARIO
ARGUELLES, ROLANDO STA. ANA, NELLIE
UGDANG, PEDRO ATUEL, RUBY BONSOBRE,
RUTH
FORNILLOS,
DANIEL GATCHALIAN, RUBEN GUTIERREZ,
JULIET GATCHALIAN, ZENAIDA POBLETE,
ARTHUR
LOUDY, LILIAN
LU,
ISABEL MEJIA, EDUARDO ARGUELLES, LAO
SUI
KIEN,
SAMUEL CONSOLACION, DR.
ARTUROMONTERO, DRA.
LILIOSA
MONTERO,
PEDRO
LACIA,
CIRILA
LACIA, EVELYNSANGALANG,

dispositive portion of which read:


With the foregoing, the assailed Decision of Branch 4, Regional Trial Court of Panabo
Davao dated 26 November 1990 in Sp. Civil Action No. 89-1 is hereby AFFIRMED.[2]

210

The Regional Trial Court dismissed petitioners petition for declaratory relief with prayer for preliminary

Subsequently, the petition was amended due to the passage of Resolution No. 49, series of 1989

injunction and writ of restraining order, and ordered the petitioner to pay attorneys fees in the amount of P1,000

(Resolution No. 49), denominated as Ordinance No. 10, appropriating a further amount of P1,515,000 for the

to each of the 57 private respondents.[3]

construction of additional stalls in the same public market. [6]

The factual antecedents follow.

Prior to the passage of these resolutions, respondent Mayor Cafe had already entered into contracts

In 1989, petitioner Jumamil[4] filed before the Regional Trial Court (RTC) of Panabo, Davao del

with those who advanced and deposited (with the municipal treasurer) from their personal funds the sum

Norte a petition for declaratory relief with prayer for preliminary injunction and writ of restraining order

ofP40,000 each. Some of the parties were close friends and/or relatives of the public respondents. [7] The

against public respondents Mayor Jose J. Cafe and the members of the Sangguniang Bayan of Panabo, Davao

construction of the stalls which petitioner sought to stop through the preliminary injunction in the RTC was

del Norte. He questioned the constitutionality of Municipal Resolution No. 7, Series of 1989 (Resolution No.

nevertheless finished, rendering the prayer therefor moot and academic. The leases of the stalls were then

7).

awarded by public raffle which, however, was limited to those who had deposited P40,000 each.[8] Thus, the

Resolution No. 7, enacting Appropriation Ordinance No. 111, provided for an initial appropriation

petition was amended anew to include the 57 awardees of the stalls as private respondents. [9]

ofP765,000 for the construction of stalls around a proposed terminal fronting the Panabo Public Market [5]which
Petitioner alleges that Resolution Nos. 7 and 49 were unconstitutional because they were:
was destroyed by fire.

passed for the business, occupation, enjoyment and benefit of private respondents who
deposited the amount of P40,000.00 for each stall, and with whom also the mayor had a
prior contract to award the would be constructed stalls to all private respondents. As
admitted by public respondents some of the private respondents are close friends and/or
relatives of some of the public respondents which makes the questioned acts
discriminatory. The questioned resolutions and ordinances did not provide for any notice
of publication that the special privilege and unwarranted benefits conferred on the
private respondents maybe (sic) availed of by anybody who can deposit the amount
of P40,000.00.[10]
Neither was there any prior notice or publication pertaining to contracts
entered into by public and private respondents for the construction of stalls to be

211

awarded to private respondents that the same can be availed of by anybody willing to
deposit P40,000.00.[11]
petition. The appellate court eventually rendered its decision in that case finding that the petitioners were not

In this petition, petitioner prays for the reversal of the decision of the Court of Appeals (CA) and a

entitled to the declaratory relief prayed for as they had no legal interest in the controversy. Upon elevation to

declaration of the unconstitutionality, illegality and nullity of the questioned resolutions/ordinances and lease

the Supreme Court as UDK Case No. 9948, the petition for review on certiorari was denied for being

contracts entered into by the public and private respondents; for the declaration of the illegality of the award of

insufficient in form and substance. [16]

the stalls during the pendency of this action and for the re-raffling and award of the stalls in a manner that is

fair and just to all interested applicants; [12] for the issuance of an order to the local government to admit any

and all interested persons who can deposit the amount of P40,000 for a stall and to order a re-raffling for the

award of the stalls to the winners of the re-raffle; for the nullification of the award of attorneys fees to private

respondents on the ground that it was erroneous and unmeritorious; and for the award of damages in favor of

petitioner in the form of attorneys fees.[13]

At the outset, we must point out that the issue of the constitutionality of the questioned resolutions

was never ruled upon by both the RTC and the CA.

It appears that on May 21, 1990, both parties agreed [14] to await the decision in CA G.R. SP No. 20424,[15]which

involved similar facts, issues and parties. The RTC, consequently, deferred the resolution of the pending

The RTC, after receipt of the entry of the SC judgment,[17] dismissed the pending petition on

November 26, 1990. It adopted the ruling in CA G.R. SP No. 20424:


xxxxxxxxx
We find petitioners aforesaid submission utterly devoid of merit. It is, to say the least,
questionable whether or not a special civil action for declaratory relief can be filed in
relation to a contract by persons who are not parties thereto. Under Sec. 1 of Rule 64 of
the Rules of Court, any person interested under a deed, will, contract, or other written
instruments may bring an action to determine any question of the contract, or validly
arising under the instrument for a declaratory (sic) of his rights or duties thereunder.
Since contracts take effect only between the parties (Art. 1311) it is quite plain that one
who is not a party to a contract can not have the interest in it that the rule requires as a
basis for declaratory reliefs (PLUM vs. Santos, 45 SCRA 147).
Following this ruling, the petitioners were not parties in the agreement for the award of
the market stalls by the public respondents, in the public market of Panabo, Davao, and
since the petitioners were not parties to the award of the market stalls and whose rights
are never affected by merely stating that they are taxpayers, they have no legal interest
in the controversy and they are not, therefore, entitled to bring an action for declaratory
relief.[18]
WHEREFORE, the petition of the petitioners as taxpayers being without
merit and not in consonance with law, is hereby ordered DISMISSED.
As to the counterclaim for damages, the same not having been actually and
fully proven, the Court gives no award as to the same. It is not amiss to state here that
the petitioners agreed to be bound by the outcome of Special Civil Case No. 89-10.
However, for unnecessarily dragging into Court the fifty-seven (57) private
respondents who are bonafide businessmen and stall holders in the public market of
Panabo, it is fitting and proper for the petitioners to be ordered payment of attorneys
fees.

212

Accordingly, the herein petitioners are ordered to pay ONE THOUSAND


(P1,000.00) PESOS EACH to the 57 private respondents, as attorneys fees, jointly and
severally, and for them to pay the costs of this suit.
SO ORDERED.[19]

From this adverse decision, petitioner again appealed to the Court of Appeals in CA-G.R. CV No.

35082 which is now before us for review.

The appellate court, yet again, affirmed the RTC decision and held that:
Res judicata does not set in a case dismissed for lack of capacity to sue,
because there has been no determination on the merits. Neither does the law of the case
apply. However, the court a quo took judicial notice of the fact that petitioners agreed to
be bound by the outcome of Special Civil Case No. 89-10. Allegans contraria non est
audiendus. (He is not to be heard who alleges things contradictory to each other.) It must
be here observed that petitioners-appellants were the ones who manifested that it would
be practical to await the decision of the Supreme Court in their petition for certiorari, for
after all the facts, circumstances and issues in that case, are exactly the same as in the
case that is here appealed. Granting that they may evade such assumption, a careful
evaluation of the case would lead Us to the same conclusion: that the case for
declaratory relief is dismissible. As enumerated by Justice Regalado in his Remedial
Law Compendium, the requisites of an action for declaratory relief are:
(a)
The subject matter of the controversy must be a deed, will, contract or
other written instrument, statute, executive order or regulation, or ordinance;
(b)
The terms of said documents and the validity thereof are doubtful and
require judicial construction;
(c)

There must have been no breach of the documents in question;

(d)
There must be an actual justiciable controversy or the ripening seeds
of one between persons whose interests are adverse;
(e)

The issue must be ripe for judicial determination; and

(f)
Adequate relief is not available through other means or other forms
of action or proceeding.

between parties having adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory relief. In GSISEA and GSISSU vs. Hon. Alvendia
etc. and GSIS, 108 Phil. 505, the Supreme Court ruled a declaratory relief improper or
unnecessary when it appears to be a moot case, since it seeks to get a judgment on a
pretended controversy, when in reality there is none. In Kawasaki Port Service
Corporation vs. Amores, 199 SCRA 230, citing Dy Poco vs. Commissioner of
Immigration, et al., 16 SCRA 618, the rule was stated: where a declaratory judgment as
to a disputed fact would be determinative of issues rather than a construction of definite
stated rights, statuses and other relations, commonly expressed in a written instrument,
the case is not one for declaratory judgment.
Indeed, in its true light, the present petition for declaratory relief seems to be
no more than a request for an advisory opinion to which courts in this and other
jurisdiction have cast a definite aversion. The ordinances being assailed are
appropriation ordinances. The passage of the ordinances were pursuant to the public
purpose of constructing market stalls. For the exercise of judicial review, the
governmental act being challenged must have had an adverse effect on the person
challenging it, and the person challenging the act, must have standing to challenge, i.e.,
in the categorical and succinct language of Justice Laurel, 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. Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been personally injured by the
operation of a law or by official action taken, but by concerned citizens, taxpayers or
voters who actually sue in the public interest. Hence the question in standing is whether
such parties have alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which
the court largely depends for illumination of difficult constitutional questions.
A careful analysis of the records of the case at bar would disclose that
petitioners-appellants have suffered no wrong under the terms of the ordinances being
assailed and, naturally need no relief in the form they now seek to obtain. Judicial
exercise cannot be exercised in vacuo. The policy of the courts is to avoid ruling on a
constitutional question and to presume that the acts of the political departments are valid
in the absence of a clear and unmistakable showing to the contrary. To doubt is to
sustain. The issue is not the ordinances themselves, but the award of the market stalls to
the private respondents on the strength of the contracts individually executed by them
with Mayor Cafe. To reiterate, a person who is not a party to a contract cannot file a
petition for declaratory relief and seek judicial interpretation of such contract (Atlas
Consolidated Mining Corp. vs. Court of Appeals, 182 SCRA 166). Not having
established their locus standi, we see no error committed by the court a quo warranting
reversal of the appealed decision.
With the foregoing, the assailed Decision of Branch 4, Regional Trial Court
of Panabo Davao dated 26 November 1990 in Sp. Civil Action No. 89-1 is hereby
AFFIRMED.
SO ORDERED.[20]

In Tolentino vs. Board of Accountancy, et al, 90 Phil. 83, 88, the Supreme
Court ratiocinated the requisites of justiciability of an action for declaratory relief by
saying that the court must be satisfied that an actual controversy, or the ripening seeds of
one, exists between parties, all of whom are sui juris and before the court, and that the
declaration sought will be a practical help in ending the controversy.
The petition must show an active antagonistic assertion of a legal right on
one side and a denial thereof on the other concerning a real, and not a mere theoretical
question or issue. The question is whether the facts alleged a substantial controversy

213

Thus, both the RTC and the CA dismissed the case on the ground of petitioners lack of legal

standing and the parties agreement to be bound by the decision in CA G.R. SP. No. 20424.

The issues to be resolved are the following:

must have been raised at the earliest opportunity, and (5) the issue of constitutionality must be the very lis

mota of the case.[21]

Legal standing or locus standi is a partys personal and substantial interest in a case such that he has

sustained or will sustain direct injury as a result of the governmental act being challenged. It calls for more
(1) whether the parties were bound by the outcome in CA G.R. SP. No. 20424;
than just a generalized grievance. The term interest means a material interest, an interest in issue affected by
(2) whether petitioner had the legal standing to bring the petition for declaratory relief;
the decree, as distinguished from mere interest in the question involved, or a mere incidental interest. [22] Unless
(3) whether Resolution Nos. 7 and 49 were unconstitutional; and
a persons constitutional rights are adversely affected by the statute or ordinance, he has no legal standing.
(4) whether petitioner should be held liable for damages.
LOCUS STANDI AND THE
CONSTITUTIONALITY ISSUE

The CA held that petitioner had no standing to challenge the two resolutions/ordinances because he

We will first consider the second issue. The petition for declaratory relief challenged the

suffered no wrong under their terms. It also concluded that the issue (was) not the ordinances themselves but

constitutionality of the subject resolutions. There is an unbending rule that courts will not assume jurisdiction

the award of the market stalls to the private respondents on the strength of the contracts individually executed

over a constitutional question unless the following requisites are satisfied: (1) there must be an actual case

by them with Mayor Cafe. Consequently, it ruled that petitioner, who was not a party to the lease contracts, had

calling for the exercise of judicial review; (2) the question before the Court must be ripe for adjudication; (3)

no standing to file the petition for declaratory relief and seek judicial interpretation of the agreements.

the person challenging the validity of the act must have standing to do so; (4) the question of constitutionality

214

We do not agree. Petitioner brought the petition in his capacity as taxpayer of the Municipality of

and private respondents had already entered into lease contracts for the construction and award of the market

Panabo, Davao del Norte[23] and not in his personal capacity. He was questioning the official acts of the public

stalls.[29] Private respondents admitted they deposited P40,000 each with the municipal treasurer, which

respondents in passing the ordinances and entering into the lease contracts with private respondents. A

amounts were made available to the municipality during the construction of the stalls. The deposits, however,

taxpayer need not be a party to the contract to challenge its validity. [24] Atlas Consolidated Mining &

were needed to ensure the speedy completion of the stalls after the public market was gutted by a series of

Development Corporation v. Court of Appeals [25] cited by the CA does not apply because it involved contracts

fires.[30] Thus, the award of the stalls was necessarily limited only to those who advanced their personal funds

between two private parties.

for their construction.[31]

Parties suing as taxpayers must specifically prove sufficient interest in preventing the illegal
Petitioner did not seasonably allege his interest in preventing the illegal expenditure of public funds
expenditure of
or the specific injury to him as a result of the enforcement of the questioned resolutions and contracts. It was

money raised by taxation.[26] The expenditure of public funds by an officer of the State for the purpose of

only in the Remark to Comment he filed in this Court did he first assert that he (was) willing to engage in

executing an unconstitutional act constitutes a misapplication of such

business and (was) interested to occupy a market stall.[32] Such claim was obviously an afterthought.

Be that as it may, we have on several occasions relaxed the application of these rules on legal
funds.[27] The resolutions being assailed were appropriations ordinances. Petitioner alleged that these

ordinances were passed for the business, occupation, enjoyment and benefit of private respondents [28] (that is,

allegedly for the private benefit of respondents) because even before they were passed, respondent Mayor Cafe

standing:

In not a few cases, the Court has liberalized the locus standi requirement
when a petition raises an issue of transcendental significance or paramount importance
to the people. Recently, after holding that the IBP had no locus standi to bring the suit,
the Court in IBP v. Zamora nevertheless entertained the Petition therein. It noted that

215

"the IBP has advanced constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents."[33]
into this agreement was authorized by the Sangguniang Bayan of Panabo per Resolution No. 180 dated
oOo
October 10, 1988[37] and that all the people interested were invited to participate in investing their savings. [38]
Objections to a taxpayer's suit for lack of sufficient personality, standing or
interest are procedural matters. Considering the importance to the public of a suit
assailing the constitutionality of a tax law, and in keeping with the Court's duty,
specially explicated in the 1987 Constitution, to determine whether or not the other
branches of the Government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them, the Supreme
Court may brush aside technicalities of procedure and take cognizance of the suit. [34]
oOo

There being no doctrinal definition of transcendental importance, the


following determinants formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive: (1) the character of the funds or other assets involved in the
case; (2) the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the government; and
(3) the lack of any other party with a more direct and specific interest in raising the
questions being raised.[35]

We note that the foregoing was a disputed fact which the courts below did not resolve because the

case was dismissed on the basis of petitioners lack of legal standing. Nevertheless, petitioner failed to prove

the subject ordinances and agreements to be discriminatory. Considering that he was asking this Court to

nullify the acts of the local political department of Panabo, Davao del Norte, he should have clearly established

that such ordinances operated unfairly against those who were not notified and who were thus not given the

opportunity to make their deposits. His unsubstantiated allegation that the public was not notified did not
But, even if we disregard petitioners lack of legal standing, this petition must still fail. The subject
suffice. Furthermore, there was the time-honored presumption of regularity of official duty, absent any
resolutions/ordinances appropriated a total of P2,280,000 for the construction of the public market stalls.
showing to the contrary.[39] And this is not to mention that:
Petitioner alleges that these ordinances were discriminatory because, even prior to their enactment, a decision

had already been made to award the market stalls to the private respondents who depositedP40,000 each and

The policy of the courts is to avoid ruling on constitutional questions and to


presume that the acts of the political departments are valid, absent a clear and
unmistakable showing to the contrary. To doubt is to sustain. This presumption is based
on the doctrine of separation of powers. This means that the measure had first been
carefully studied by the legislative and executive departments and found to be in accord
with the Constitution before it was finally enacted and approved. [40]

who were either friends or relatives of the public respondents. Petitioner asserts that there (was) no publication

or invitation to the public that this contract (was) available to all who (were) interested to own a stall and
Therefore, since petitioner had no locus standi to
(were) willing to deposit P40,000.[36] Respondents, however, counter that the public respondents act of entering

216

question the ordinances, there is no need for us to discuss the constitutionality of said enactments.
WERE THE PARTIES BOUND BY THE
OUTCOME IN CA G.R. SP. NO. 20424?

Finally, on the issue of damages, petitioner asserts that he impleaded the 57 respondents in good faith since the

award of the stalls to them was made during the pendency of the action. [43] Private respondents refute this

assertion and argue that petitioner filed this action in bad faith and with the intention of harassing them
Adverting to the first issue, we observe that petitioner was the one who wanted the parties to await
inasmuch as he had already filed CA G.R. SP. No. 20424 even before then. [44] The RTC, affirmed by the CA,
the decision of the Supreme Court in UDK Case No. 9948 since the facts and issues in that case were similar
held that petitioner should pay attorneys fees for unnecessarily dragging into Court the 57 private respondents
to this. Petitioner, having expressly agreed to be bound by our decision in the aforementioned case, should be
who (were) bonafide businessmen and stall holders in the public market of Panabo. [45]
reined in by the dismissal order we issued, now final and executory. In addition to the fact that nothing

We do not agree that petitioner should be held liable for damages. It is not sound public policy to

prohibits parties from committing to be bound by the results of another case, courts may take judicial notice of

a judgment in another case as long as the parties give

put a premium on the right to litigate where such right is exercised in good faith, albeit erroneously. [46] The

alleged bad faith of petitioner was never established. The special circumstances in Article 2208 of the Civil

Code justifying the award of attorneys fees are not present in this case.

their consent or do not object.[41] As opined by Justice Edgardo L. Paras:


A court will take judicial notice of its own acts and records in the same case,
of facts established in prior proceedings in the same case, of the authenticity of its own
records of another case between the same parties, of the files of related cases in the same
court, and of public records on file in the same court. In addition, judicial notice will be
taken of the record, pleadings or judgment of a case in another court between the same
parties or involving one of the same parties, as well as of the record of another case
between different parties in the same court.[42]

WHEREFORE, the decision of the Court of Appeals in CA-G.R. CV No. 35082 is

hereby AFFIRMEDwith the MODIFICATION that the award of attorney's fees to private respondents is

deleted.

DAMAGES
Costs against petitioner.

217

SO ORDERED.

SALONGA VS CRUZ-PANO
http://www.lawphil.net/judjuris/juri1985/feb1985/gr_l59524_1985.html

TOLENTINO VS COMELEC
http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/148334.htm

JAVIER VS COMELEC
http://www.lawphil.net/judjuris/juri1986/sep1986/gr_68379_81_1986.html

OPLE VS TORRES
http://www.lawphil.net/judjuris/juri1998/jul1998/gr_127685_1998.html

YNOT VS IAC
http://www.lawphil.net/judjuris/juri1987/mar1987/gr_74457_1987.html

PEOPLE VS VERA
http://www.lawphil.net/judjuris/juri1937/nov1937/gr_l-45685_1937.html

SERRANO VS DE AGBAYANI
http://www.lawphil.net/judjuris/juri1971/apr1971/gr_23127_1971.html

ESTRADA VS SANDIGAN BAYAN


http://sc.judiciary.gov.ph/jurisprudence/2001/nov2001/148560.htm

SALAZAR VS ACHACOSO
http://www.lawphil.net/judjuris/juri1990/mar1990/gr_81510_1990.html

UMALI VS GUINGONA
http://sc.judiciary.gov.ph/jurisprudence/1999/mar99/131124.htm

THE STATE
CIR VS CAMPOS RUEDA

ARCETA VS MANGROBANG
http://sc.judiciary.gov.ph/jurisprudence/2004/jun2004/152895.htm

http://www.lawphil.net/judjuris/juri1971/oct1971/gr_13250_1971.html
REAGAN VS CIR
http://www.lawphil.net/judjuris/juri1969/dec1969/gr_26379_1969.html

MIRASOL VS CA
http://sc.judiciary.gov.ph/jurisprudence/2001/feb2001/128448.htm

PEOPLE VS GOZO
http://www.lawphil.net/judjuris/juri1973/oct1973/gr_36409_1973.html

MITRA VS COMELEC
http://www.lawphil.net/judjuris/juri1981/apr1981/gr_56503_1981.html

218

PEOPLE VS SB

TECSON VS COMELEC

http://www.lawphil.net/judjuris/juri2003/aug2003/gr_145951_2003.html

http://sc.judiciary.gov.ph/jurisprudence/2004/mar2004/161434.HTM

MIAA VS COURT OF APPEALS

IN RE CHING

http://www.lawphil.net/judjuris/juri2006/jul2006/gr_155650_2006.html

http://sc.judiciary.gov.ph/jurisprudence/1999/oct99/BM_914.htm

ACCFA VS CUGCO

CO VS HRET

http://www.lawphil.net/judjuris/juri1969/nov1969/gr_l-21484_1969.html

http://www.lawphil.net/judjuris/juri1991/jul1991/gr_92191_92_92202_03_1991.html

VALMONTE VS BELMONTE

VILLAHERMOSA VS COMMISSIONER

http://www.lawphil.net/judjuris/juri1969/nov1969/gr_l-21484_1969.html

http://www.lawphil.net/judjuris/juri1948/mar1948/gr_l-1663_1948.html

CABANAS VS PILAPIL

BENGZON VS HRET

http://www.lawphil.net/judjuris/juri1974/jul1974/gr_l_25843_1974.html

http://sc.judiciary.gov.ph/jurisprudence/2001/may2001/142840.htm

GONZALES VS MARCOS

VELASCO VS COMELEC

http://www.lawphil.net/judjuris/juri1975/jul1975/gr_l_31685_1975.html

http://sc.judiciary.gov.ph/jurisprudence/2008/december2008/180051.htm

CO KIM CHAM VS VALDEZ

MAQUILING VS COMELEC

http://www.lawphil.net/judjuris/juri1945/sep1945/gr_l-5_1945.html

http://www.lawphil.net/judjuris/juri2013/jul2013/gr_195649_2013.html

LAWYERS LEAGUE VS AQUINO*

REPUBLIC VS DE LA ROSA

http://www.lawphil.net/judjuris/juri1986/oct1986/gr_76180_1986.html

REPUBLIC VS LIYAO

MACARIOLA VS ASUNCION

MOYA LIM YAO VS COMMISSIONER

http://www.lawphil.net/judjuris/juri1982/may1982/am_133_j_1982.html

COQUILLA VS COMELEC

HARVEY VS COMMISSIONER

YU VS SANTIAGO

http://www.lawphil.net/judjuris/juri1988/jun1988/gr_82544_1988.html

FRIVALDO VS COMELEC 1989

CITIZENSHIP

FRIVALDO VS COMELEC 1996

LEE VS DIRECTOR OF LANDS

ALTAREJEROS VS COMELEC

http://sc.judiciary.gov.ph/jurisprudence/2001/oct2001/128195.htm

TABASA VS COURT OF APPEALS

REPUBLIC VS CHULE LIM

ANGAT VS REPUBLIC

http://sc.judiciary.gov.ph/jurisprudence/2004/jan2004/153883.htm

JAO VS REPUBLIC

219

NICHOLAS-LEWIS VS COMELEC

MINUCHER VS CA

AZNAR VS COMELEC

REP. OF INDONESIA VS VINSON

MERCADO VS MANZANO

WHO VS AQUINO

VALLES VS COMELEC

DFA VS NLRC

DOCTRINE OF STATE IMMUNITY

ANIMAS VS PVAO

REPUBLIC VS FELICIANO

USA VS REYES

PHIL. AGILA SATELITE VS LICHAUCO

LANSANG VS CA

SAYSON VS SINGSON

SHAUF VS COURT OF APPEALS

REPUBLIC VS PURISIMA

REPUBLIC VS SANDOVAL

MERITT VS GOVERNMENT

PNB VS PABALAN

PNB VS CIR

MUNICIPALITY OF MAKATI VS CA

SSS VS CA

NESSIA VS FERMIN

RAYO VS CFI

CALOOCAN VS ALLARDE

FAROLAN VS CTA

PRINCIPLES AND POLICIES

RP VS SANDIGANBAYAN

PABLO OCAMPO VS HRET

FROILAN VS PAN ORIENTAL SHIPPING CO.

VILLAVICENCIO VS LUKBAN

LIM VS BROWNELL

MEJOFF VS DIRECTOR OF PRISONS

MALONG VS PNR

AGUSTIN VS EDU

FONTANILLA VS MALIAMAN

ICHONG VS HERNANDEZ

SANTIAGO VS REPUBLIC

IN RE GARCIA

AMBIGABLE VS CUENCA

ESTRADA VS ESCRITOR

TORIO VS FONATNILLA

BAYAN VS EXEC. SEC.

THE HOLY SEE VS HON. ROSARIO JR

CALALANG VS WILLIAMS

USA VS RUIZ

APCD VS PCA

USA VS GUINTO

PLDT VS NTC

220

MAQUERA VS BORJA

INS VS CHADHA

SIMON VS CHR

LA BUGAL-BLAAN VS RAMOS

PASEI VS DRILON

ARNAULT VS BALAGTAS

TABLARIN VS GUTIERREZ

GOLDWATER VS CARTER

PRC VS DE GUZMAN

DELEGATION OF POWERS

UP BOR VS CA

GARCIA VS EXEC. SEC.

CAMACHO VS CORESIS

JAWORSKI VS PAGCOR

MANDALUYONG VS FRANCISCO

US VS TANG HO

SSS EMPLOY ASSN VS CA

CONFERENCE VS POEA

PROV. OF RIZAL VS EXEC. SEC.

PALAEZ VS AUDITOR GENERAL

ROE VS WADE

PEOPLE VS JUDGE DACUYCUY

MEYER VS NEBRASKA

THE STRUCTURE AND POWERS OF THE NATIONAL GOVERNMENT

PIERCE VS SOCIETY

CONGRESS

ANGELES

ARNAULT VS NAZARENO

VS JUDGE SISON

NERI VS SENATE COMMITTEE

TANADA VS ANGARA

SEGMA VS COMELEC

PLDT VS NTC

BAGABUYO VS COMELEC

LEGASPI VS CSC

BANAT VS COMELEC

VALMONTE VS BELMONTE*

ATONG PAGLAUM VS COMELEC

DE JESUS VS COA

SANTIAGO VS GUINGONA

CHAVEZ VS PEA AND AMARI*

AVELINO VS CUENCO

SEPARATION OF POWERS

PACETE VS COMM. ON APPOINTMENTS

IN RE LAURETA AND MARAVILLA

ARROYO VS DE VENECIA

DEMETRIA VS ALBA

ALEJANDRO VS QUEZON

MANTRUSTE SYSTEM VS CA

OSMENA VS PENDATUM

221

SANTIAGO VS SANDIGAN BAYAN

GUINGONA VS CARAQUE

DE VENECIA VS SB

TOLENTINO VS SECRETARY OF FINANCE 1994

CASCO CHEMICAL CO. VS GIMENEZ

PHILCONSA VS ENRIQUEZ 1994

UNITED STATES VS PONS

ABAKADA GURO VS ERMITA

PHILCONSA VS MATHAY

LUNG CENTER VS Q.C.

LIGOT VS MATHAY

TAN VS DEL ROSARIO

JIMENEZ VS CABANGAN

GARCIA VS EXECUTIVE SECRETARY

PEOPLE VS JALOSJOS

JOHN HAY PAC VS LIM

TRILLANES VS PIMENTEL

FIRST LEPANTO CERAMICS VS CA

ADAZA VS PACANA

FABIAN V DESIERTO

PUYAT VS DE GUZMAN

TOLENTINO VS SEC OF FINANCE SUPRA*

ABBAS VS SET

PHILCONSA VS ENRIQUEZ SUPRA*

SAMPAYAN VS DAZA

GONZALES VS MACARAIG

BONDOC VS PINEDA

BENGSON VS DRILON

PENA VS HRET

INS VS CHADHA

GUERRERO VS COMELEC

BOWSER VS SYNAR

CODILLA VS DE VENECIA

MILLER VS MARDO

REYES VS COMELEC

TANADA VS TUVERA*

CUNANAN VS TAN

PVB EMPL. UNION VS VEGA

DAZA VS SINGSON

SENATE VS ERMITA

COSETENG VS MITRA

SABIO VS GORDON

GUINGONA VS GONZALES

ARNAULT VS NAZARENO*

TIO VS VIDEOGRAM REGULATORY BOARD

ARNAULT VS BALAGTAS

LIDASAN VS COMELEC

BENGSON VS SEN. BLUE RIBBON COMM

DEMETRIA VS ALBA

NERI VS SENATE 2008

222

PIMENTEL VS JOINT COMM.

SORIANO VS LISTA

BRILLANTES VS COMELEC

PIMENTEL VS ERMITA*

PIMENTEL VS EXECUTIVE SECRETARY

IN RE VALENZUELA 1998

FRANCISCO VS HOUSE OF REP

DE RAMA VS CA

NIXON VS US

MATIBAG VS BENIPAYO

EXECUTIVE DEPARTMENT

LARIN VS EXEC. SEC

REPUBLIC VS SANDIGAN BAYAN

ECHEGARAYVS SECRETARY OF JUSTICE

ESTRADA VS ARROYO

PEOPLE VS CASIDO

CLU VS EXEC. SEC.

PEOPLE VS NACIONAL

CRUZ VS COA

MONSANTO VS FACTORAN

NAC VS COA

SABELLO VS DECS

LAUREL VS GARCIA

LLAMAS VS ORBOS

MARCOS VS MANGLAPUS

CRISTOBAL VS LABRADOR

DENR VS DENR EMPL.

PELOBELLO VS GONZALES

DE LEON VS CARPIO

IN RE LONTOK 1923

BLAQUERA VS ALCALA

GARCIA VS CHAIRMAN

HUTCHISON PORTS VS SBMA

TORRES VS GONZALES

NEA VS COA

IBP VS ZAMORA

RUFINO VS ENDRIGA

SANLAKAS VS EXEC SEC.

PIMENTEL VS AGUIRRE

AQUINO VS ENRILE

BERMUDEZ VS TORRES

OLAQUER VS MC

SARMIENTO VS MISON

NAVALES VS ABAYA

CONCEPCION- BAUTISTA VS SALONGA

LANSANG VS GARCIA

CALDERON VS CARALE

IN RE DE VILLA 2004

MANALO VS SISTOZA

DAVID VS ARROYO

223

CONSTANTINO VS CUISIA

FELIPE VS LEUTERIO

PEOPLES MOVEMENT VS MANGLAPUS

PRUDENTIAL BANK VS CASTRO

COMM. OF CUSTOMS VS EASTER SEA

CONSING VS COURT OF APPEALS

GO TEK VS DEPORTATION BOARD

CRUZ VS DENR

SENATE VS ERMITA*

VALLADOLID VS INCIONG

GUDANI V SENGA

NUNAL VS COA

BELTRAN VS MACASIAR

PEOPLE VS BUGARIN

GLORIA VS CA

HERNANDEZ VS COURT OF APPEALS

ESTRADA VS DESIERTO

YAO VS CA

NIXON VS FITGERALD

DIZON VS JUDGE LOPEZ

HARLOW VS FIRGERALD

ASIA VEST VS CA

CLINTON VS JONES

TICHANGCO V ENRIQUEZ

JUDICIAL DEPARTMENT

MENDOZA VS CFI

MIRANDA VS AGUIRRE

MARTINEZ VS CA

MMDA VS JANCOM

MACQUIRAN VS JUDGE LOPEZ

PEOPLE VS GACOTT

RE: DELAYS IN THE SB 2001

SB VS J. ESTRELLA

MACEDA VS VASQUEZ

MERALCO VS PASAY TRANS CO.

CAOIBES VS OMBUDSMAN

GARCIA VS MACARAIG

IN RE DEMETRIA

NITAFAN VS CIR

PEOPLE VS SOLA

IN RE GONXALES 1988

RE: REQ FOR SPECIAL DIV

TIROL VS CA

ZALDIVAR VS GONZALES

PEOPLE VS RAMOS

IN RE CUNANAN 1954

PEOPLE VS TENG

AGUIRRE VS RANA 2003

SANTIAGO VS BAUTISTA

IN RE EDILION 1978

224

IN RE IBP 1989

GRINO VS CSC

DE LA LLANA VS ALBA

SAMSOM VS CA

THE CONSTITUTIONAL COMMISSION

TRIBA VS STO. TOMAS

CAYETANO VS MONSOD

CORPUS VS CUADERNO

GAMINDE VS COA

OFFICE OF THE OMBUDSMAN VS CSC

BRILLANTES VS YORAC

CB EMPL ASSOC VS BSP

CSC VS DBM

NAC VS COA

CHREA VS CHR 2004

TRINIDAD VS VALLE

CHREA VS CHR 2006

VISTAN VS NICOLAS

CUA VS COMELEC

PASTOR VS CITY OF PASIG

SARMIENTO VS COMELEC

DOMINGO VS ZAMORA

AMBIL VS COMELEC

DAVID VS GANIA

REYES VS COA

MIRANDA VS CARREON

THE CIVIL SERVICE COMMISSION

OFFICE OF THE PRES VS BUENAOBRA

CAMPOREDONDO VS NLRC

UP VS REGINO

NSC VS NLRC

LUEGO VS CSC

SSSEA VS CA

CENTRAL BANK VS CSC

LEYSON VS OMBUDSMAN

BRILLANTES VS COMELEC

BALUYOT VS HOLGANZA

TYPOCO VS COMELEC

PNCC VS FABION

LOONG VS COMELEC

DE LEON VS CA

PANGANDAMAN VS COMELEC

GENERAL VS ROCO

DOMINO VS COMELEC

CSC VS SALAS

SANDOVAL VS COMELEC

PAGCOR VS RILLORAZA

AL HAJ VS COMELEC

CARDIENTE VS SANTOS

GUEVARRA VS COMELEC

225

JARAMILLA VS COMELEC

ROXAS VS VASQUEZ

DE JESUS VS PEOPLE

PCGG VS DISERTO

PEOPLE VS JUDGE INTING

PEOPLE VS VELEZ

BAYTAN VS COMELEC

LEDESMA VS CA

PEOPLEVS JUDGE BASILIA

OMBUDSMAN VS MADRIAGA

UNIDO VS COMELEC

ZALDIVAR VS SB

SEBASTIAN VS COMELEC

ORAP VS SANDIGANBAYAN

DBP VS COA

CARINO VS CHR

SAMBELI VS PROVINCE OF ISABELA

CANONIZADO VS AGUIRRE

ALBERT VS COA
BUSTAMANTE VS COA
DBP VS COA
NUNEZ VS SANDIGANBAYAN

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