CASE 1
Tablarin v. Judge Angelina S. Gutierrez, No. L-78164, 31 July 1987,
152 SCRA 730, 743.
DECISION
FELICIANO, J.:
The petitioners sought admission into colleges or schools of medicine
for the school year 1987-1988. However, the petitioners either did not
take or did not successfully take the National Medical Admission Test
(NMAT) required by the Board of Medical Education, one of the public
respondents, and administered by the private respondent, the Center
for Educational Measurement (CEM).
On 5 March 1987, the petitioners filed with the Regional Trial Court,
National Capital Judicial Region, a Petition for Declaratory Judgment
and Prohibition with a prayer for Temporary Restraining Order and
Preliminary Injunction. The petitioners sought to enjoin the Secretary of
Education, Culture and Sports, the Board of Medical Education and the
Center for Educational Measurement from enforcing Section 5 (a) and
(f) of Republic Act No. 2382, as amended, and MECS Order No. 52,
series of 1985, dated 23 August 1985 and from requiring the taking and
passing of the NMAT as a condition for securing certificates of eligibility
for admission, from proceeding with accepting applications for taking
the NMAT and from administering the NMAT as scheduled on 26 April
1987 and in the future. After hearing on the petition for issuance of
preliminary injunction, the trial court denied said petition on 20 April
1987. The NMAT was conducted and administered as previously
scheduled.
Petitioners accordingly filed this Special Civil Action for Certiorari with
this Court to set aside the Order of the respondent judge denying the
petition for issuance of a writ of preliminary injunction.
Republic Act 2382, as amended by Republic Acts Nos. 4224 and 5946,
known as the "Medical Act of 1959" defines its basic objectives in the
following manner:
"Section 1. Objectives. This Act provides for and shall govern (a) the
standardization and regulation of medical education; (b) the
examination for registration of physicians; and (c) the supervision,
control and regulation of the practice of medicine in the Philippines."
The statute, among other things, created a Board of Medical Education
which is composed of (a) the Secretary of Education, Culture and
Sports or his duly authorized representative, as Chairman; (b) the
Secretary of Health or his duly authorized representative; (c) the
Director of Higher Education or his duly authorized representative; (d)
the Chairman of the Medical Board or his duly authorized
representative; (e) a representative of the Philippine Medical
Association; (f) the Dean of the College of Medicine, University of the
Philippines; (g) a representative of the Council of Deans of Philippine
Medical Schools; and (h) a representative of the Association of
Philippine Medical Colleges, as members. The functions of the Board of
Medical Education specified in Section 5 of the statute include the
following:
"(a) To determine and prescribe requirements for admission into a
recognized college of medicine;
(b) To determine and prescribe requirements for minimum physical
facilities of colleges of medicine, to wit: buildings, including hospitals,
equipment and supplies, apparatus, instruments, appliances,
laboratories, bed capacity for instruction purposes, operating and
delivery rooms, facilities for outpatient services, and others, used for
didactic and practical instruction in accordance with modern trends;
(c ) To determine and prescribe the minimum number and minimum
qualifications of teaching personnel, including student-teachers ratio;
(d) To determine and prescribe the minimum required curriculum
leading to the degree of Doctor of Medicine;
(e) To authorize the implementation of experimental medical
curriculum in a medical school that has exceptional faculty and
instrumental facilities. Such an experimental curriculum may prescribe
admission and graduation requirements other than those prescribed in
this Act; Provided, That only exceptional students shall be enrolled in
the experimental curriculum;
(f) To accept applications for certification for admission to a medical
school and keep a register of those issued said certificate; and to
collect from said applicants the amount of twenty-five pesos each which
shall accrue to the operating fund of the Board of Medical Education;
(g) To select, determine and approve hospitals or some departments
of the hospitals for training which comply with the minimum specific
physical facilities as provided in subparagraph (b) hereof; and
(h) To promulgate and prescribe and enforce the necessary rules
and regulations for the proper implementation of the foregoing
functions."
Section 7 prescribes certain minimum requirements for applicants to
medical schools:
"Admission requirements. The medical college may admit any student
who has not been convicted by any court of competent jurisdiction of
any offense involving moral turpitude and who presents (a) a record of
completion of a bachelor's degree in science or arts; (b) a certificate of
eligibility for entrance to a medical school from the Board of Medical
Education; (c) a certificate of good moral character issued by two
former professors in the college of liberal arts; and (d) birth certificate.
Nothing in this act shall be construed to inhibit any college of medicine
from establishing, in addition to the preceding, other entrance
requirements that may be deemed admissible.
. . ."
MECS Order No. 52, s. 1985, issued by the then Minister of Education,
Culture and Sports and dated 23 August 1985, established a uniform
admission test called the National Medical Admission Test (NMAT) as
an additional requirement for issuance of a certificate of eligibility for
admission into medical schools of the Philippines, beginning with the
school year 1986-1987. This Order goes on to state that:
"2. The NMAT, an aptitude test, is considered as an instrument toward
upgrading the selection of applicants for admission into the medical
schools and its calculated to improve the quality of medical education in
the country. The cutoff score for the successful applicants, based on
the scores on the NMAT, shall be determined every year by the Board
of Medical Education after consultation with the Association of
Philippine Medical Colleges. The NMAT rating of each applicant,
together with the other admission requirements as presently called for
under existing rules, shall serve as a basis for the issuance of the
prescribed certificate of eligibility for admission into the medical
colleges.
3. Subject to the prior approval of the Board of Medical Education,
each medical college may give other tests for applicants who have
been issued a corresponding certificate of eligibility for admission that
will yield information on other aspects of the applicant's personality to
complement the information derived from the NMAT.
-xxx- -x- -xxx-
8. No applicant shall be issued the requisite Certificate of Eligibility for
Admission (CEA), or admitted for enrollment as first year student in any
medical college, beginning the school year, 1986- 87, without the
required NMAT qualification as called for under this Order."
Pursuant to MECS Order No. 52, s. 1985, the private respondent
Center conducted NMATs for entrance to medical colleges during the
school year 1986-1987. In December 1986 and in April 1987,
respondent Center conducted the NMATs for admission to medical
colleges during the school year 1987-1988.
Petitioners raise the question of whether or not a writ of preliminary
injunction may be issued to enjoin the enforcement of Section 5 (a) and
(f) of Republic Act No. 2382, as amended, and MECS Order No. 52, s.
1985, pending resolution of the issue of constitutionality of the assailed
statute and administrative order. We regard this issue as entirely
peripheral in nature. It scarcely needs documentation that a court would
issue a writ of preliminary injunction only when the petitioner assailing a
statute or administrative order has made out a case of
unconstitutionality strong enough to overcome, in the mind of the judge,
the presumption of constitutionality, aside from showing a clear legal
right to the remedy sought. The fundamental issue is of course the
constitutionality of the statute or order assailed.
1. The petitioners invoke a number of provisions of the 1987
Constitution which are, in their assertion, violated by the continued
implementation of Section 5 (a) and (f) of Republic Act 2381, as
amended, and MECS Order No. 52, s. 1985. The provisions invoked
read as follows:
(a) Article II, Section 11: "The state values the dignity of every human
person and guarantees full respect of human rights.
"(b) Article II, Section 13: "The State recognizes the vital role of the
youth in nation building and shall promote and protect their physical,
moral, spiritual, intellectual and social well being. It shall inculcate in the
youth patriotism and nationalism, and encourage their involvement in
public and civic affairs.
"(c ) Article II, Section 17: "The State shall give priority to education,
science and technology, arts, culture and sports to foster patriotism and
nationalism, accelerate social progress and to promote total human
liberation and development.
"(d) Article XIV, Section 1: "The State shall protect and promote the
right of all citizens to quality education at all levels and take appropriate
steps to make such education accessible to all.
"(e) Article XIV, Section 5 (3): "Every citizen has a right to select a
profession or course of study, subject to fair, reasonable and equitable
admission and academic requirements."
Article II of the 1987 Constitution sets forth in its second half certain
"State policies" which the government is enjoined to pursue and
promote. The petitioners here have not seriously undertaken to
demonstrate to what extent or in what manner the statute and the
administrative order they assail collide with the State policies embodied
in Sections 11, 13 and 17. They have not, in other words, discharged
the burden of proof which lies upon them. This burden is heavy enough
where the constitutional provision invoked is relatively specific, rather
than abstract, in character and cast in behavioral or operational terms.
That burden of proof becomes of necessity heavier where the
constitutional provision invoked is cast, as the second portion of Article
II is cast, in language descriptive of basic policies, or more precisely, of
basic objectives of State policy and therefore highly generalized in
tenor. The petitioners have not made their case, even a prima facie
case, and we are not compelled to speculate and to imagine how the
legislation and regulation impugned as unconstitutional could possibly
offend the constitutional provisions pointed to by the petitioners.
Turning to Article XIV, Section 1, of the 1987 Constitution, we note that
once more petitioners have failed to demonstrate that the statute and
regulation they assail in fact clash with that provision. On the contrary
we may note - in anticipation of discussion infra ---- that the statute and
the regulation which petitioners attack are in fact designed to promote
"quality education" at the level of professional schools. When one reads
Section 1 in relation to Section 5 (3) of Article XIV as one must one
cannot but note that the latter phrase of Section 1 is not to be read with
absolute literalness. The State is not really enjoined to take appropriate
steps to make quality education "accessible to all who might for any
number of reasons wish to enroll in a professional school but rather
merely to make such education accessible to all who qualify under "fair,
reasonable and equitable admission and academic requirements."
2. In the trial court, petitioners had made the argument that Section 5
(a) and (f) of Republic Act No. 2382, as amended, offend against the
constitutional principle which forbids the undue delegation of legislative
power, by failing to establish the necessary standard to be followed by
the delegate, the Board of Medical Education. The general principle of
non-delegation of legislative power, which both flows from the
reinforces the more fundamental rule of the separation and allocation of
powers among the three great departments of government, 1 must be
applied with circumspection in respect of statutes which like the Medical
Act of 1959, deal with subjects as obviously complex and technical as
medical education and the practice of medicine in our present day
world. Mr. Justice Laurel stressed this point 47 years ago in
Pangasinan Transportation Co., Inc. vs. The Public Service
Commission: 2
"One thing, however, is apparent in the development of the principle of
separation of powers and that is that the maxim of delegatus non potest
delegare or delegati potestas non potest delegare, adopted this practice
(Delegibus et Consuetudiniis Anglia edited by G.E. Woodbine, Yale
University Press, 1922, Vol. 2, p. 167) but which is also recognized in
principle in the Roman Law (d.17.18,3) has been made to adapt itself to
the complexities of modern government, giving rise to the adoption,
within certain limits, of the principle of 'subordinate legislation,' not only
in the United States and England but in practically all modern
governments. (People vs. Rosenthal and Osmena [68 Phil. 318, 1939].
Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the
increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater power by the
legislature, and toward the approval of the practice by the courts." 3
The standards set for subordinate legislation in the exercise of rule
making authority by an administrative agency like the Board of Medical
Education are necessarily broad and highly abstract. As explained by
then Mr. Justice Fernando in Edu v. Ericta 4
"The standard may be either expressed or implied. If the former, the
non-delegation objection is easily met. The standard though does not
have to be spelled out specifically. It could be implied from the policy
and purpose of the act considered as a whole. In the Reflector Law,
clearly the legislative objective is public safety. What is sought to be
attained as in Calalang v. Williams is 'safe transit upon the roads.'" 5
We believe and so hold that the necessary standards are set forth in
Section 1 of the 1959 Medical Act: "the standardization and regulation
of medical education" and in Section 5 (a) and 7 of the same Act, the
body of the statute itself, and that these considered together are
sufficient compliance with the requirements of the non-delegation
principle.
3. The petitioners also urge that the NMAT prescribed in MECS Order
No. 52, s. 1985, is an "unfair, unreasonable and inequitable
requirement," which results in a denial of due process. Again,
petitioners have failed to specify just what factors or features of the
NMAT render it "unfair" and "unreasonable" or "inequitable." They
appear to suggest that passing the NMAT is an unnecessary
requirement when added on top of the admission requirements set out
in Section 7 of the Medical Act of 1959, and other admission
requirements established by internal regulations of the various medical
schools, public or private. Petitioners arguments thus appear to relate
to utility and wisdom or desirability of the NMAT requirement. But
constitutionality is essentially a question of power or authority: this
Court has neither commission or competence to pass upon questions of
the desirability or wisdom or utility of legislation or administrative
regulation. Those questions must be addressed to the political
departments of the government not to the courts.
There is another reason why the petitioners' arguments must fail: the
legislative and administrative provisions impugned by them constitute,
to the mind of the Court, a valid exercise of the police power of the
state. The police power, it is commonplace learning, is the pervasive
and non-waivable power and authority of the sovereign to secure and
promote all the important interests and needs ---- in a word, the public
order ---- of the general community. 6 An important component of that
public order is the health and physical safety and well being of the
population, the securing of which no one can deny is a legitimate
objective of governmental effort and regulation. 7
Perhaps the only issue that needs some consideration is whether there
is some reasonable relation between the prescribing of passing the
NMAT as a condition for admission to medical school on the one hand,
and the securing of the health and safety of the general community, on
the other hand. This question is perhaps most usefully approached by
recalling that the regulation of the practice of medicine in all its
branches has long been recognized as a reasonable method of
protecting the health and safety of the public. 8 That the power to
regulate and control the practice of medicine includes the power to
regulate admission to the ranks of those authorized to practice
medicine, is also well recognized. Thus, legislation and administrative
regulations requiring those who wish to practice medicine first to take
and pass medical board examinations have long ago been recognized
as valid exercises of governmental power. 9 Similarly, the
establishment of minimum medical educational requirements ---- i.e.,
the completion of prescribed courses in a recognized medical school ---
- for admission to the medical profession, has also been sustained as a
legitimate exercise of the regulatory authority of the state. 10 What we
have before us in the instant case is closely related; the regulation of
access to medical schools. MECS Order No. 52, s. 1985, as noted
earlier, articulates the rationale of regulation of this type: the
improvement of the professional and technical quality of the graduates
of medical schools, by upgrading the quality of those admitted to the
student body of the medical schools. That upgrading is sought by
selectivity in the process of admission, selectivity consisting, among
other things, of limiting admission to those who exhibit in the required
degree the aptitude for medical studies and eventually for medical
practice. The need to maintain, and the difficulties of maintaining, high
standards in our professional schools in general, and medical schools
in particular, in the current stage of our social and economic
development, are widely known.
We believe that the government is entitled to prescribe an admission
test like the NMAT as a means for achieving its stated objective of
"upgrading the selection of applicants into [our] medical schools" and of
"improv[ing] the quality of medical education in the country." Given the
widespread use today of such admission tests in, for instance, medical
schools in the United States of America (the Medical College Admission
Test [MCAT] 11 and quite probably in other countries with far more
developed educational resources than our own, and taking into account
the failure or inability of the petitioners to even attempt to prove
otherwise, we are entitled to hold that the NMAT is reasonably related
to the securing of the ultimate end of legislation and regulation in this
area. That end, it is useful to recall, is the protection of the public from
the potentially deadly effects of incompetence and ignorance in those
who would undertake to treat our bodies and minds for disease or
trauma.
4. Petitioners have contended, finally, that MECS Order No. 52, s.
1985, is in conflict with the equal protection clause of the Constitution.
More specifically, petitioners assert that portion of the MECS Order
which provides that.
"the cutoff score for the successful applicants, based on the scores on
the NMAT, shall be determined every year by the Board of Medical
Education after consultation with the Association of Philippine Medical
Colleges."
infringes the requirements of equal protection. They assert, in other
words, that students seeking admission during a given school year.
e.g., 1987-1988, when subjected to a different cutoff score than that
established for an, e.g., earlier school year, are discriminated against
and that this renders the MECS Order "arbitrary and capricious." The
force of this argument is more apparent than real. Different cutoff
scores for different school years may be dictated by differing conditions
obtaining during those years. Thus, the appropriate cutoff score for a
given year may be a function of such factors as the number of students
who have reached the cutoff score established the preceding year; the
number of places available in medical schools during the current year;
the average score attained during the current year; the level of difficulty
of the test given during the current year, and so forth. To establish a
permanent and immutable cutoff score regardless of changes in
circumstances from year to year, may well result in an unreasonable
rigidity. The above language in MECS Order No. 52, far from being
arbitrary or capricious, leaves the Board of Medical Education with the
measure of flexibility needed to meet circumstances as they change.
We conclude that prescribing the NMAT and requiring certain minimum
scores therein as a condition for admission to medical schools in the
Philippines, do not constitute an unconstitutional imposition.
WHEREFORE, the Petition for Certiorari is DISMISSED and the Order
of the respondent trial court denying the petition for a writ of preliminary
injunction is AFFIRMED. Costs against petitioners.
SO ORDERED.
4. 35 SCRA 481 (1970).
5. 35 SCRA, at 497. At this point, Mr. Justice Fernando dropped a
useful footnote of the following tenor:
"This Court has considered as sufficient standards, 'public welfare,'
Municipality of Cardona v. Binangonan, 36 Phil. 547 (1917); 'necessary
in the interest of law and order,' Rubi v. Provincial Board, 39 Phil. 660
(1919); 'public interest,' People v. Rosenthal, 68 Phil. 328 (1939); and
'justice and equity and substantial merits of the case,' International
Hardwood v. Pangil Federation of Labor, 70 Phil. 602 (1940)."
In People v. Exconde, 101 Phil. 1125 (1957), Mr. Justice J.B.L. Reyes
said:
"It is well established in this jurisdiction that, while the making of laws
is a non-delegable activity that corresponds exclusively to Congress,
nevertheless, the latter may constitutionally delegate authority and
promulgate rules and regulations to implement a given legislation and
effectuate its policies, for the reason that the legislature often finds it
impracticable (if not impossible) to anticipate and provide for the
multifarious and complex situations that may be met in carrying the law
into effect. All that is required is that the regulation should be germane
to the objects and purposes of the law; that the regulation be not in
contradiction with it, but conform to the standards that the law
prescribes ." (101 Phil. at 1129).
CASE 2
MIRIAM COLLEGE FOUNDATION, INC., petitioner, vs. HON.
COURT OF APPEALS,
G.R. No. 127930
DECISION
KAPUNAN, J.:
"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to
young readers," and devoid of all moral values."[1] This was how some
members of the Miriam College community allegedly described the
contents of the September-October 1994 issue (Vol. 41, No. 14) of
Miriam College's school paper (Chi-Rho), and magazine (Ang Magasing
Pampanitikan ng Chi-Rho). The articles in the Chi-Rho included:
xxx a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry
Renacido xxx.
Kaskas, written in Tagalog, treats of the experience of a group of
young, male, combo players who, one evening, after their performance
went to see a bold show in a place called "Flirtation". This was the way
the author described the group's exposure during that stage show:
"Sige, sa Flirtation tayo. Happy hour na halos... he! he! he! sambit ng
kanilang bokalistang kanina pa di maitago ang pagkahayok sa karneng
babae na kanyang pinananabikan nuong makalawa pa, susog naman
ang tropa.
"x x x Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa
emcee. Nakasuot lamang ng bikining pula na may palamuting dilaw sa
gilid-gilid at sa bandang utong. Nagsimula siya sa kanyang pag-giling
nang tumugtog na ang unang tono ng "Goodbye" ng Air Supply.
Dahan-dahan ang kanyang mga malalantik at mapang-akit na galaw sa
una. Mistulang sawa na nililingkis ang hangin, paru-parong padapo-
dapo sa mga bulaklak na lamesa, di-upang umamoy o kumuha ng
nektar, ngunit para ipaglantaran ang sariling bulaklak at ang angkin
nitong malansang nektar.
"Kaskas mo babe, sige .. kaskas."
Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang
natipuhan, dahil sa harap niya'y nagtagal. Nag-akmang mag-aalis ng
pangitaas na kapirasong tela. Hindi nakahinga si Mike, nanigas sa
kanyang kinauupuan, nanigas pati ang nasa gitna ng kanyang hita.
Ang mga mata niya'y namagnet sa kayamanang ngayo'y halos isang
pulgada lamang mula sa kanyang naglalaway na bunganga. Naputol-
putol ang kanyang hininga nang kandungan ni 'Red Raven' ang
kanyang kanang hita. Lalo naghingalo siya nang kabayuhin ito ng
dahan-dahan ... Pabilis ng pabilis.'
The author further described Mike's responses to the dancer as follows
(quoted in part):
x x x Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi
nagpatalo ang ibong walang pakpak, inipit ng husto ang hita ni Mike at
pinag-udyukan ang kanyang dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"
Palpakan at halagpakan na tawanan ang tumambad sa kanya ng
biglang halikan siya nito sa labi at iniwang bigla, upang kanyang muniin
ang naudlot niyang pagtikim ng karnal na nektar. Hindi niya maanto
kung siya ay nanalo o natalo sa nangyaring sagupaan ng libog. Ang
alam lang niya ay nanlata na siya."
After the show the group went home in a car with the bokalista driving.
A pedestrian happened to cross the street and the driver deliberately hit
him with these words:
"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He!
Sabad ng sabog nilang drayber/bokalista."
The story ends (with their car about to hit a truck) in these words:
"Pare ... trak!!! Put....!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given
the cover title of "Libog at iba pang tula."
In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote:
"Alam ko, nakakagulat ang aming pamagat." Jerome then proceeded
to write about previous reactions of readers to women-writers writing
about matters erotic and to gay literature. He justified the Magazine's
erotic theme on the ground that many of the poems passed on to the
editors were about "sekswalidad at iba't ibang karanasan nito."
Nakakagulat ang tapang ng mga manunulat... tungkol sa maselang
usaping ito xxx at sa isang institusyon pang katulad ng Miriam!"
Mr. Gomez quoted from a poem entitled "Linggo" written by himself:
may mga palangganang nakatiwangwang -
mga putang biyak na sa gitna,
'di na puwedeng paglabhan,
'di na maaaring pagbabaran..."
Gomez stated that the poems in the magazine are not "garapal" and "sa
mga tulang ito namin maipagtatanggol ang katapangan (o pagka-
sensasyonal) ng pamagat na "Libog at iba pang Tula." He finished
"Foreplay" with these words: "Dahil para saan pa ang libog kung hindi
ilalabas?"
The cover title in question appears to have been taken from a poem
written by Relly Carpio of the same title. The poem dealt on a woman
and a man who met each other, gazed at each other, went up close and
"Naghalikan, Shockproof." The poem contained a background drawing
of a woman with her two mamaries and nipples exposed and with a
man behind embracing her with the woman in a pose of passion-filled
mien.
Another poem entitled 'Virgin Writes Erotic' was about a man having
fantasies in his sleep. The last verse said: "At zenith I pull it out and
find myself alone in this fantasy." Opposite the page where this poem
appeared was a drawing of a man asleep and dreaming of a naked
woman (apparently of his dreams) lying in bed on her buttocks with her
head up (as in a hospital bed with one end rolled up). The woman's
right nipple can be seen clearly. Her thighs were stretched up with her
knees akimbo on the bed.
In the next page (page 29) one finds a poem entitled "Naisip ko Lang"
by Belle Campanario. It was about a young student who has a love-
selection problem: "Kung sinong pipiliin: ang teacher kong praning, o
ang boyfriend kong bading." The word "praning" as the court
understands it, refers to a paranoid person; while the word "bading"
refers to a sward or "bakla" or "badidang". This poem also had an
illustration behind it: of a young girl with large eyes and sloping hair
cascading down her curves and holding a peeled banana whose top the
illustrator shaded up with downward-slanting strokes. In the poem, the
girl wanted to eat banana topped by peanut butter. In line with
Jerome's "Foreplay" and by the way it was drawn that banana with
peanut butter top was meant more likely than not, to evoke a spiritedly
mundane, mental reaction from a young audience.
Another poem entitled "Malas ang Tatlo" by an unknown author went
like this:
"Na picture mo na ba
no'ng magkatabi tayong dalawa
sa pantatluhang sofa...
ikaw, the legitimate asawa
at ako, biro mo, ang kerida?
tapos, tumabi siya, shit!
kumpleto na:
ikaw, ako at siya
kulang na lang, kamera."
A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho
broadsheet spoke of a fox (lobo) yearning for "karneng sariwa, karneng
bata, karneng may kalambutan.... isang bahid ng dugong dalaga,
maamo't malasa, ipahid sa mga labing sakim sa romansa' and ended
with 'hinog na para himukin bungang bibiyakin."[2]
Following the publication of the paper and the magazine, the members
of the editorial board,[3] and Relly Carpio, author of Libog, all students
of Miriam College, received a letter signed by Dr. Aleli Sevilla, Chair of
the Miriam College Discipline Committee. The Letter dated 4
November 1994 stated:
This is to inform you that the letters of complain filed against you by
members of the Miriam Community and a concerned Ateneo grade five
student have been forwarded to the Discipline Committee for inquiry
and investigation. Please find enclosed complaints.
As expressed in their complaints you have violated regulations in the
student handbook specifically Section 2 letters B and R, pages 30 and
32, Section 4 (Major offenses) letter j, page 36 letters m, n, and p, page
37 and no. 2 (minor offenses) letter a, page 37.
You are required to submit a written statement in answer to the
charge/s on or before the initial date of hearing to be held on November
15, 1994, Tuesday, 1:00 in the afternoon at the DSA Conference
Room.[4]
None of the students submitted their respective answers. They instead
requested Dr. Sevilla to transfer the case to the Regional Office of the
Department of Education, Culture and Sports (DECS) which under Rule
XII of DECS Order No. 94, Series of 1992, supposedly had jurisdiction
over the case.[5]
In a Letter dated 21 November 1994, Dr. Sevilla again required the
students to file their written answers.
In response, Atty. Ricardo Valmonte, lawyer for the students, submitted
a letter[6] to the Discipline Committee reiterating his clients' position
that said Committee had no jurisdiction over them. According to Atty.
Valmonte, the Committee was "trying to impose discipline on [his
clients] on account of their having written articles and poems in their
capacity as campus journalists." Hence, he argued that "what applies is
Republic Act No. 7079 [The Campus Journalism Act] and its
implementing rules and regulations." He also questioned the partiality of
the members of said Committee who allegedly "had already articulated
their position" against his clients.
The Discipline Committee proceeded with its investigation ex parte.
Thereafter, the Discipline Board, after a review of the Discipline
Committee's report, imposed disciplinary sanctions upon the students,
thus:
1. Jasper Briones Expulsion. Briones is the Editor-in-Chief
of Chi-Rho and a 4th year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on
February 2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon
is a 4th year student and could graduate as summa cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including
diploma. She is an Octoberian;
7. Joel Tan suspension for two (2) weeks to expire
on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials.
He is a 2nd year student. He wrote the fiction story "Kaskas";
9. Relly Carpio Dismissed and given transfer credentials.
He is in 3rd year and wrote the poem "Libog";
10. Jerome Gomez Dismissed and given transfer credentials.
He is in 3rd year. He wrote the foreword "Foreplay" to the questioned
Anthology of Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is
a 2nd year student and art editor of Chi-Rho.[7]
The above students thus filed a petition for prohibition and certiorari
with preliminary injunction/restraining order before the Regional Trial
Court of Quezon City questioning the jurisdiction of the Discipline Board
of Miriam College over them.
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by
Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs'
prayer for a Temporary Restraining Order. It held:
There is nothing in the DECS Order No. 94, S. 1992 dated August 19,
1992 that excludes school Administrators from exercising jurisdiction
over cases of the nature involved in the instant petition. R.A. 7079 also
does not state anything on the matter of jurisdiction. The DECS
undoubtedly cannot determine the extent of the nature of jurisdiction of
schools over disciplinary cases. Moreover, as this Court reads that
DECS Order No. 94, S. of 1992, it merely prescribes for purposes of
internal administration which DECS officer or body shall hear cases
arising from R.A. 7079 if and when brought to it for resolution. The said
order never mentioned that it has exclusive jurisdiction over cases
falling under R.A. 707.[8]
The students thereafter filed a "Supplemental Petition and Motion for
Reconsideration." The College followed with its Answer.
Subsequently, the RTC issued an Order dated 10 February 1995
granting the writ of preliminary injunction.
ACCORDINGLY, so as not to render the issues raised moot and
academic, let a writ of preliminary injunction issue enjoining the
defendants, including the officers and members of the Disciplinary
Committee, the Disciplinary Board, or any similar body and their agents,
and the officers and members of the Security Department, Division, or
Security Agency securing the premises and campus of Miriam College
Foundation, Inc. from:
1. Enforcing and/or implementing the expulsion or dismissal resolutions
or orders complained of against herein plaintiffs (a) Jasper Briones; (b)
Gerald Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e)
Jose Mari Ramos, but otherwise allowing the defendants to impose
lesser sanctions on aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein
plaintiffs (all eleven of them) from taking tests or exams and entering
the Miriam campus for such purpose as extended to all students of
Miriam College Foundation, Inc.; neither should their respective course
or subject teachers or professors withhold their grades, including final
grades, if and when they meet the requirements similarly prescribed for
all other students, this current 2nd Semester of 1994-95.
The sanctions imposed on the other plaintiffs, namely, Deborah Ligon,
Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne
Cowper, shall remain in force and shall not be covered by this
Injunction: Provided, that Camille Portugal now a graduate, shall have
the right to receive her diploma, but defendants are not hereby
prevented from refusing her the privilege of walking on the graduation
stage so as to prevent any likely public tumults.
The plaintiffs are required to post an injunction bond in the sum of Four
Thousand Pesos (P4,000.00) each.
SO ORDERED.[9]
Both parties moved for a reconsideration of the above order. In an
Order dated 22 February 1995, the RTC dismissed the petition, thus:
4. On the matter raised by both parties that it is the DECS which has
jurisdiction, inasmuch as both parties do not want this court to assume
jurisdiction here then this court will not be more popish than the Pope
and in fact is glad that it will have one more case out of its docket.
ACCORDINGLY, the instant case is hereby DISMISSED without
prejudice to the parties going to another forum.
All orders heretofore issued here are hereby recalled and set aside.
SO ORDERED.[10]
The students, excluding Deborah Ligon, Imelda Hilario and Daphne
Cowper, sought relief in this Court through a petition for certiorari and
prohibition of preliminary injunction/restraining order[11] questioning the
Orders of the RTC dated 10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of
Appeals (CA) for disposition.[12] On 19 May 1995, the CA issued a
resolution stating:
The respondents are hereby required to file comment on the instant
petition and to show cause why no writ of preliminary injunction should
be issued, within ten (10) days from notice hereof, and the petitioners
may file reply thereto within five (5) days from receipt of former's
comment.
In order not to render ineffectual the instant petition, let a Temporary
Restraining Order be issued enjoining the public respondents from
enforcing letters of dismissal/suspension dated January 19, 1995.
SO ORDERED.[13]
In its Decision dated 26 September 1996, respondent court granted the
students' petition. The CA declared the RTC Order dated 22 February
1995, as well as the students' suspension and dismissal, void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following issues:
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the petition for certiorari
filed by the students.
(3) The power of petitioner to suspend or dismiss respondent students.
(4) The jurisdiction of petitioner over the complaints against the
students.
We do not tackle the alleged obscenity of the publication, the propriety
of the penalty imposed or the manner of the imposition thereof. These
issues, though touched upon by the parties in the proceedings below,
were not fully ventilated therein.
I when, to counter this allegation by the students, it says that private
Petitioner asserts the Court of Appeals found the case moot thus:
While this petition may be considered moot and academic since more
than one year have passed since May 19, 1995 when this court issued
a temporary restraining order enjoining respondents from enforcing the
dismissal and suspension on petitioners....[14]
Since courts do not adjudicate moot cases, petitioner argues that the
CA should not have proceeded with the adjudication of the merits of the
case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May 1995 was a
temporary restraining order, not a preliminary injunction. The records
do not show that the CA ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a
court, agency or a person to perform to refrain from performing a
particular act or acts.[15] As an extraordinary remedy, injunction is
calculated to preserve or maintain the status quo of things and is
generally availed of to prevent actual or threatened acts, until the merits
of the case can be heard.[16] A preliminary injunction persists until it is
dissolved or until the termination of the action without the court issuing
a final injunction.
The basic purpose of restraining order, on the other hand, is to
preserve the status quo until the hearing of the application for
preliminary injunction.[17] Under the former §5, Rule 58 of the Rules of
Court, as amended by §5, Batas Pambansa Blg. 224, a judge (or
justice) may issue a temporary restraining order with a limited life of
twenty days from date of issue.[18] If before the expiration of the 20-day
period the application for preliminary injunction is denied, the temporary
order would thereby be deemed automatically vacated. If no action is
taken by the judge on the application for preliminary injunction within
the said 20 days, the temporary restraining order would automatically
expire on the 20th day by the sheer force of law, no judicial declaration
to that effect being necessary.[19] In the instant case, no such
preliminary injunction was issued; hence, the TRO earlier issued
automatically expired under the aforesaid provision of the Rules of
Court.[20]
This limitation as to the duration of the temporary restraining order was
the rule prevailing when the CA issued its TRO dated 19 May 1995.[21]
By that time respondents Elizabeth Valdezco and Joel Tan had already
served their respective suspensions. The TRO was applicable only to
respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari
Ramos and Gerald Gary Renacido all of whom were dismissed, and
respondent Camille Portugal whose graduation privileges were
withheld. The TRO, however, lost its effectivity upon the lapse of the
twenty days. It can hardly be said that in that short span of time, these
students had already graduated as to render the case moot.
Either the CA was of the notion that its TRO was effective throughout
the pendency of the case or that what is issued was a preliminary
injunction. In either case, it was error on the part of the CA to assume
that its order supposedly enjoining Miriam from enforcing the dismissal
and suspension was complied with. A case becomes moot and
academic when there is no more actual controversy between the
parties or no useful purpose can be served in passing upon the
merits.[22] To determine the moot character of a question before it, the
appellate court may receive proof or take notice of facts appearing
outside the record.[23] In the absence of such proof or notice of facts,
the Court of Appeals should not have assumed that its TRO was
enforced, and that the case was rendered moot by the mere lapse of
time.
Indeed, private respondents in their Comment herein[24] deny that the
case has become moot since Miriam refused them readmission in
violation of the TRO. This fact is unwittingly conceded by Miriam itself
respondents never sought readmission after the restraining order was
issued.[25] In truth, Miriam relied on legal technicalities to subvert the
clear intent of said order, which states:
In order not to render ineffectual the instant petition, let a Temporary
Restraining Order be issued enjoining the public respondents from
enforcing letters of dismissal/suspension dated January 19, 1995.
Petitioner says that the above order is "absurd" since the order
"incorrectly directs public respondent, the Hon. Jaime Salazar,
presiding judge of the Regional Trial Court of Quezon City not to
dismiss or suspend the students."[26]
We do not agree. Padua vs. Robles[27]lays down the rules in
construing judgments. We find these rules to be applicable to court
orders as well:
[T]he sufficiency and efficacy of a judgment must be tested by its
substance rather than its form. In construing a judgment, its legal
effects including such effects that necessarily follow because of legal
implications, rather than the language used, govern. Also, its meaning,
operation, and consequences must be ascertained like any other
written instrument. Thus, a judgment rests on the intent of the Court as
gathered from every part thereof, including the situation to which it
applies and attendant circumstances. ( nderscoring supplied.)
Tested by such standards, we find that the order was indeed intended
for private respondents (in the appellate court) Miriam College, et al.,
and not public respondent Judge. In dismissing the case, the trial judge
recalled and set aside all orders it had previously issued, including the
writ of preliminary injunction. In doing so, the trial court allowed the
dismissal and suspension of the students to remain in force. Thus, it
would indeed be absurd to construe the order as being directed to the
RTC. Obviously, the TRO was intended for Miriam College.
True, respondent-students should have asked for a clarification of the
above order. They did not. Nevertheless, if Miriam College found the
order "absurd," then it should have sought a clarification itself so the
Court of Appeals could have cleared up any confusion. It chose not to.
Instead, it took advantage of the supposed vagueness of the order and
used the same to justify its refusal to readmit the students.
As Miriam never readmitted the students, the CA's ruling that the case
is moot has no basis. How then can Miriam argue in good faith that the
case had become moot when it knew all along that the facts on which
the purported moot character of the case were based did not exist?
Obviously, Miriam is clutching to the CA's wrongful assumption that the
TRO it issued was enforced to justify the reversal of the CA's decision.
Accordingly, we hold that the case is not moot, Miriam's pretensions to
the contrary notwithstanding.
II
"To uphold and protect the freedom of the press even at the campus
level and to promote the development and growth of campus journalism
as a means of strengthening ethical values, encouraging critical and
creative thinking, and developing moral character and personal
discipline of the Filipino youth,"[28] Congress enacted in 1991 Republic
Act No. 7079.
Entitled "AN ACT PROVIDING FOR THE DEVELOPMENT AND
PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER
PURPOSES,"[29] the law contains provisions for the selection of the
editorial board[30] and publication adviser,[31] the funding of the school
publication,[32] and the grant of exemption to donations used actually,
directly and exclusively for the promotion of campus journalism from
donor's or gift tax.[33]
Noteworthy are provisions clearly intended to provide autonomy to the
editorial board and its members. Thus, the second paragraph of
Section 4 states that "(o)nce the publication is established, its editorial
board shall freely determine its editorial policies and manage the
publication's funds."
Section 7, in particular, provides:
A member of the publication staff must maintain his or her status as
student in order to retain membership in the publication staff. A student
shall not be expelled or suspended solely on the basis of articles he or
she has written, or on the basis of the performance of his or her duties
in the student publication.
Section 9 of the law mandates the DECS to "promulgate the rules and
regulations necessary for the effective implementation of this Act."[34]
Pursuant to said authority, then DECS Secretary Armand Fabella,
issued DECS Order No. 94, Series of 1992, providing under Rule XII
that:
GENERAL PROVISIONS
SECTION 1. The Department of Education, Culture and Sports (DECS)
shall help ensure and facilitate the proper carrying out of the
Implementing Rules and Regulations of Republic Act No. 7079. It shall
also act on cases on appeal brought before it.
The DECS regional office shall have the original jurisdiction over cases
as a result of the decisions, actions and policies of the editorial board of
a school within its area of administrative responsibility. It shall conduct
investigations and hearings on the these cases within fifteen (15) days
after the completion of the resolution of each case. ( nderscoring
supplied.)
The latter two provisions of law appear to be decisive of the present
case.
It may be recalled that after the Miriam Disciplinary Board imposed
disciplinary sanctions upon the students, the latter filed a petition for
certiorari and prohibition in the Regional Trial Court raising, as grounds
therefor, that:
I
DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY
BOARD OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER
THE CASE.[35]
II
DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE
DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN
IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR
TAKING COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL
DENY THE LATTER OF THEIR RIGHT TO DUE PROCESS.[36]
Anent the first ground, the students theorized that under Rule XII of the
Rules and Regulations for the Implementation of R.A. No. 7079, the
DECS Regional Office, and not the school, had jurisdiction over them.
The second ground, on the other hand, alleged lack of impartiality of the
Miriam Disciplinary Board, which would thereby deprive them of due
process. This contention, if true, would constitute grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the
trial court. These were the same grounds invoked by the students in
their refusal to answer the charges against them. The issues were thus
limited to the question of jurisdiction - a question purely legal in nature
and well within the competence and the jurisdiction of the trial court, not
the DECS Regional Office. This is an exception to the doctrine of
primary jurisdiction. As the Court held in Phil. Global Communications,
Inc. vs. Relova.[37]
Absent such clarity as to the scope and coverage of its franchise, a
legal question arises which is more appropriate for the judiciary than for
an administrative agency to resolve. The doctrine of primary jurisdiction
calls for application when there is such competence to act on the part of
an administrative body. Petitioner assumes that such is the case. That
is to beg the question. There is merit, therefore, to the approach taken
by private respondents to seek judicial remedy as to whether or not the
legislative franchise could be so interpreted as to enable the National
Telecommunications Commission to act on the matter. A jurisdictional
question thus arises and calls for an answer.
However, when Miriam College in its motion for reconsideration
contended that the DECS Regional Office, not the RTC, had
jurisdiction, the trial court, refusing to "be more popish than the Pope,"
dismissed the case. Indeed, the trial court could hardly contain its glee
over the fact that "it will have one more case out of its docket." We
remind the trial court that a court having jurisdiction of a case has not
only the right and the power or authority, but also the duty, to exercise
that jurisdiction and to render a decision in a case properly submitted to
it.[38] Accordingly, the trial court should not have dismissed the petition
without settling the issues presented before it.
III
Before we address the question of which between the DECS Regional
Office and Miriam College has jurisdiction over the complaints against
the students, we first delve into the power of either to impose
disciplinary sanctions upon the students. Indeed, the resolution of the
issue of jurisdiction would be reduced to an academic exercise if neither
the DECS Regional Office nor Miriam College had the power to impose
sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus
Journalism Act prohibits the expulsion or suspension of a student solely
on the basis of articles he or she has written.
A.

Section 5 (2), Article XIV of the Constitution guarantees all institutions
of higher learning academic freedom. This institutional academic
freedom includes the right of the school or college to decide for itself, its
aims and objectives, and how best to attain them free from outside
coercion or interference save possibly when the overriding public
welfare calls for some restraint.[39] The essential freedoms subsumed
in the term "academic freedom" encompasses the freedom to
determine for itself on academic grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.[40]
The right of the school to discipline its students is at once apparent in
the third freedom, i.e., "how it shall be taught." A school certainly cannot
function in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational
institution requires rules and regulations necessary for the maintenance
of an orderly educational program and the creation of an educational
environment conducive to learning. Such rules and regulations are
equally necessary for the protection of the students, faculty, and
property.[41]
Moreover, the school has an interest in teaching the student discipline,
a necessary, if not indispensable, value in any field of learning. By
instilling discipline, the school teaches discipline. Accordingly, the right
to discipline the student likewise finds basis in the freedom "what to
teach."
Incidentally, the school not only has the right but the duty to develop
discipline in its students. The Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and nationalism,
foster love of humanity, respect for human rights, appreciation of the
role of national heroes in the historical development of the country,
teach the rights and duties of citizenship, strengthen ethical and
spiritual values, develop moral character and personal discipline,
encourage critical and creative thinking, broaden scientific and
technological knowledge, and promote vocational efficiency.[42]
In Angeles vs. Sison, we also said that discipline was a means for the
school to carry out its responsibility to help its students "grow and
develop into mature, responsible, effective and worthy citizens of the
community."[43]
Finally, nowhere in the above formulation is the right to discipline more
evident than in "who may be admitted to study." If a school has the
freedom to determine whom to admit, logic dictates that it also has the
right to determine whom to exclude or expel, as well as upon whom to
impose lesser sanctions such as suspension and the withholding of
graduation privileges.
Thus, in Ateneo de Manila vs. Capulong,[44] the Court upheld the
expulsion of students found guilty of hazing by petitioner therein,
holding that:
No one can be so myopic as to doubt that the immediate reinstatement
of respondent students who have been investigated and found guilty by
the Disciplinary Board to have violated petitioner university's disciplinary
rules and standards will certainly undermine the authority of the
administration of the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic
freedom which has been enshrined in the 1935, 1973 and the present
1987 Constitution.[45]
Tracing the development of academic freedom, the Court continued:
Since Garcia vs. Loyola School of Theology, we have consistently
upheld the salutary proposition that admission to an institution of higher
learning is discretionary upon a school, the same being a privilege on
the part of the student rather than a right. While under the Education
Act of 1982, students have a right "to freely choose their field of study,
subject to existing curricula and to continue their course therein up to
graduation," such right is subject, as all rights are, to the established
academic and disciplinary standards laid down by the academic
institution.
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students.
This right ... extends as well to parents ... as parents under a social and
moral (if not legal) obligation, individually and collectively, to assist and
cooperate with the schools."
Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The rules
may include those governing student discipline." Going a step further,
the establishment of the rules governing university-student relations,
particularly those pertaining to student discipline, may be regarded as
vital, not merely to the smooth and efficient operation of the institution,
but to its very survival.
Within memory of the current generation is the eruption of militancy in
the academic groves as collectively, the students demanded and
plucked for themselves from the panoply of academic freedom their
own rights encapsulized under the rubric of "right to education"
forgetting that, In Hohfeldian terms, they have the concomitant duty,
and that is, their duty to learn under the rules laid down by the school.
xxx. It must be borne in mind that universities are established, not
merely to develop the intellect and skills of the studentry, but to
inculcate lofty values, ideals and attitudes; may, the development, or
flowering if you will, of the total man.
In essence, education must ultimately be religious ... not in the sense
that the founders or charter members of the institution are sectarian or
profess a religious ideology. Rather, a religious education, as the
renowned philosopher Alfred North Whitehead said, is 'an education
which inculcates duty and reverence.' It appears that the particular
brand of religious education offered by the Ateneo de Manila University
has been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable institution as
the Ateneo de Manila University as their own a minute longer, for they
may foreseeably cast a malevolent influence on the students currently
enrolled, as well as those who come after them.
Quite applicable to this case is our pronouncement in Yap Chin Fah v.
Court of Appeals that: "The maintenance of a morally conducive and
orderly educational environment will be seriously imperilled, if, under
the circumstances of this case, Grace Christian is forced to admit
petitioner's children and to reintegrate them to the student body." Thus,
the decision of petitioner university to expel them is but congruent with
the gravity of their misdeeds.[46]
B.
Section 4 (1), Article XIV of the Constitution recognizes the State's
power to regulate educational institution:
The State recognizes the complementary roles of public and private
institutions in the educational system and shall exercise reasonable
supervision and regulation of all educational institutions.
As may be gleaned from the above provision, such power to regulate is
subject to the requirement of reasonableness. Moreover, the
Constitution allows merely the regulation and supervision of educational
institutions, not the deprivation of their rights.
C.
In several cases, this Court has upheld the right of the students to free
speech in school premises. In the landmark case of Malabanan vs.
Ramento,[47] students of the Gregorio Araneta University Foundation,
believing that the merger of the Institute of Animal Science with the
Institute of Agriculture would result in the increase in their tuition, held a
demonstration to protest the proposed merger. The rally however was
held at a place other than that specified in the school permit and
continued longer than the time allowed. The protest, moreover,
disturbed the classes and caused the stoppage of the work of non-
academic personnel. For the illegal assembly, the university
suspended the students for one year. In affirming the students' rights to
peaceable assembly and free speech, the Court through Mr. Chief
Justice Enrique Fernando, echoed the ruling of the US Supreme Court
in Tinker v. Des Moines School District.[48]
Petitioners invoke their rights to peaceable assembly and free speech.
They are entitled to do so. They enjoy like the rest of the citizens the
freedom to express their views and communicate their thoughts to
those disposed to listen in gatherings such as was held in this case.
They do not, to borrow from the opinion of Justice Fortas in Tinker v.
Des Moines Community School District, 'shed their constitutional rights
to freedom of speech or expression at the schoolhouse gate.' While,
therefore, the authority of educational institutions over the conduct of
students must be recognized, it cannot go so far as to be violative of
constitutional safeguards. On a more specific level there is persuasive
force to this Fortas opinion. "The principal use to which the schools are
dedicated is to accommodate students during prescribed hours for the
purpose of certain types of activities. Among those activities is
personal intercommunication among the students. This is not only
inevitable part of the educational process. A student's rights, therefore,
do not embrace merely the classroom hours. When he is in the
cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on controversial
subjects like the conflict in Vietnam, if he does so without 'materially
and substantially interfer[ing] with the requirements of appropriate
discipline in the operation of the school' and without colliding with the
rights of others. * * * But conduct by the student, in class or out of it,
which for any reason - whether it stems from time, place, or type of
behavior—materially disrupts classwork or involves substantial disorder
or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.[49]
The Malabanan ruling was followed in Villar vs. Technological Institute
of the Philippines,[50] Arreza vs. Gregorio Araneta University
Foundation,[51] and Non vs. Dames II.[52]
The right of the students to free speech in school premises, however, is
not absolute. The right to free speech must always be applied in light of
the special characteristics of the school environment.[53] Thus, while
we upheld the right of the students to free expression in these cases,
we did not rule out disciplinary action by the school for "conduct by the
student, in class or out of it, which for any reason - whether it stems
from time, place, or type of behavior - which materially disrupts
classwork or involves substantial disorder or invasion of the rights of
others."[54] Thus, in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the
speeches by the student leaders. That there would be a vigorous
presentation of view opposed to the proposed merger of the Institute of
Animal Science with the Institute of Agriculture was to be expected.
There was no concealment of the fact that they were against such a
move as it confronted them with a serious problem ('isang malaking
suliranin.") They believed that such a merger would result in the
increase in tuition fees, an additional headache for their parents ('isa na
naman sakit sa ulo ng ating mga magulang.") If in the course of such
demonstration, with an enthusiastic audience goading them on,
utterances extremely critical at times, even vitriolic, were let loose, that
is quite understandable. Student leaders are hardly the timid, diffident
types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious
language of the academe. At any rate, even a sympathetic audience is
not disposed to accord full credence to their fiery exhortations. They
take into account the excitement of the occasion, the propensity of
speakers to exaggerate, the exuberance of youth. They may give the
speakers the benefit of their applause, but with the activity taking place
in the school premises and during the daytime, no clear and present
danger of public disorder is discernible. This is without prejudice to the
taking of disciplinary action for conduct, which, to borrow from Tinker,
"materially disrupts classwork or involves substantial disorder or
invasion of the rights of others."[55]
It is in the light of this standard that we read Section 7 of the Campus
Journalism Act. Provisions of law should be construed in harmony with
those of the Constitution; acts of the legislature should be construed,
wherever possible, in a manner that would avoid their conflicting with
the fundamental law.[56] A statute should not be given a broad
construction if its validity can be saved by a narrower one.[57] Thus,
Section 7 should be read in a manner as not to infringe upon the
school's right to discipline its students. At the same time, however, we
should not construe said provision as to unduly restrict the right of the
students to free speech. Consistent with jurisprudence, we read
Section 7 of the Campus Journalism Act to mean that the school cannot
suspend or expel a student solely on the basis of the articles he or she
has written, except when such articles materially disrupt class work or
involve substantial disorder or invasion of the rights of others.
IV.
From the foregoing, the answer to the question of who has jurisdiction
over the cases filed against respondent students becomes self-evident.
The power of the school to investigate is an adjunct of its power to
suspend or expel. It is a necessary corollary to the enforcement of
rules and regulations and the maintenance of a safe and orderly
educational environment conducive to learning.[58] That power, like the
power to suspend or expel, is an inherent part of the academic freedom
of institutions of higher learning guaranteed by the Constitution. We
therefore rule that Miriam College has the authority to hear and decide
the cases filed against respondent students.
WHEREFORE, the decision of the Court of Appeals is REVERSED and
SET ASIDE. Petitioner Miriam College is ordered to READMIT private
respondent Joel Tan whose suspension has long lapsed.
SO ORDERED.
CASE 4
CAPITOL MEDICAL CENTER, INC., and DRA. THELMA
NAVARRETE CLEMENTE, petitioners, vs. THE COURT OF
APPEALS, G.R. No. 82499, 1989
GRIÑO-AQUINO, J.:
At bottom, the only issue in this case is whether a school that, after due
notice to the Secretary of Education, Culture and Sports, closed at the
end of the first semester of the school year 1987-1988, because its
teachers and students declared a strike, refusing to hold classes and
take examinations, may be forced to reopen by the courts at the
instance of the striking students.
Some fourteen (14) years ago, the petitioner Capitol Medical Center,
Inc. (or CMCI), a hospital corporation, organized, opened, and operated
the Capitol Medical Center College (CMCC or "the College") beside its
hospital, the Capitol Medical Center (hereafter "the Hospital") in
Quezon City. It offered a four-year nursing course, a two-year midwifery
course, and a two-year medical secretarial course. In the first semester
of the school year 1987-88, 900 students were enrolled in various
courses in the college.
Halfway through the first semester in 1987, the college faculty, led by
the Dean of Nursing, demanded that they be granted vacation and sick
leave privileges similar to those enjoyed by hospital personnel.
Dialogues were held but no agreement was reached between the
faculty and the school administration, headed by the president, Dr.
Thelma Navarette-Clemente, who was concurrently also the chairman
of the CMCI Board.
At a meeting of the CMCI Board on September 15, 1987, Dr. Clemente "5. DE LOS SANTOS COLLEGE OF NURSING
reported the deteriorating relationship between the CMCC "6. FAMILY CLINIC COLLEGE OF NURSING
administration and the teachers, which, from a simple disagreement, CMC COLLEGE ADMINISTRATION"
had degenerated into open hostility. She feared that the situation may
give rise to mass action by the students, because the faculty, exercising (p. 131, Rollo.)
their moral influence over the students, had enlisted the latter's
sympathy and support for their cause. On October 20, 1987, Dr. Clemente informed the Department, of
Education, Culture & Sports (DECS) that the school would be
The Board resolved to authorize her, as president of the College, to permanently closed at the end of the first semester.
close it at the end of the first semester if the antagonism of the faculty
and students toward the college administration should become "CAPITOL MEDICAL CENTER, INC.
uncontrollable. The minutes of that meeting of the CMC Board disclose
the following action taken by the Board: October 20, 1987

"CMC College "The Honorable Lourdes R. Quisumbing

Secretary of Education, Culture and Sports
"The chairman reported on the developing antagonism between the Manila
Dean and a good number of the Faculty on the one hand, and the CMC
Administration on the other hand on economic matters, more "Through the Regional Director
particularly the demand of the faculty for similar vacation and sick leave
privileges as hospital personnel, and that despite of dialogs (sic), the Mrs. Modesta Boquiren
faculty does not show any conformity to the difference. She fears that National Capital Region
this antagonisms might later on develop into mass actions and Quezon City
demonstrations, wherein students who are under the influence of the
dean and the faculty will show by concrete manifestation sympathy for "Dear Madam Secretary:
the faculty demands.
"Greetings!
"After a thorough discussion of the possible effect of these mess
demonstrations especially if done in front of hospital premises, on "Please be informed that in an emergency special meeting of our Board
patients confined in the hospital, and the possibility of this antagonism of Directors held on October 17, 1987, it was unanimously resolved to
being manifested during the making of the rounds of patients by CMCC close the Capitol Medical Center College, effective at the end of the first
Nursing Students when being conducted Related Learning Experiences semester of this school year, 1987-1988.
(RLE), the board unanimously approved the following resolution:
"The recurring problems between our corporation on the one hand and
"Res. No. 87-86 to authorize the Chairman in his (sic) capacity as the Dean, Faculty and student body of the college, on the other hand,
President of CMC College, to close the college at the end of the first which has resulted in the non-holding up to now, of final examinations
semester, should the antagonism described by her become for the first semester of this school year, has gotten out of hand.
uncontrollable." (p. 79, Rollo.)
"Kindly advise us of the procedure to effect the immediate closure
During the next thirty (30) days, the rift between the administration and resolution of our board.
the faculty aggravated. The school administration scheduled the holding
of the final semestral examinations on October 14 to 19, 1987, but the "Thank you.
teachers defiantly and unilaterally "postponed" them. On the scheduled
dates for the examinations, the students joined their teachers in a noisy Very truly yours,
demonstration in front of the hospital (Annexes O, P, Q, and R, pp. 146-
147, Rollo). As the demonstrations disturbed the peace and quiet of the (SGD) THELMA NAVARRETE-CLEMENTE
hospital and fearful of possible subversive action by hostile student M.D., M.H.A., Chairman of the
nurses which might endanger the safety and lives of the patients in the Board and President"
hospital, an emergency special meeting was held by the CMCI Board
on October 17, 1987. It unanimously resolved "to close the school (p. 269, Rollo)
effective at the end of the first semester of this school year, 1987-88"
(p. 269, Rollo). Starting on that date, the following announcement was As the DECS did not reply promptly, Dr. Clemente on October 29,
posted in several places on the school premises: 1987, sent another letter to DECS Secretary Lourdes Quisumbing
reinforcing CMCI's resolve to "cease operation of school immediately
"ANNOUNCEMENT effective as of the end of the first semester of the current school year
1987-88." The letter reads as follows:
"ALL STUDENTS, PLEASE BE INFORMED OF THE TOTAL
CLOSURE OF CAPITOL MEDICAL CENTER COLLEGE AFTER THE "October 29, 1987
END OF THE FIRST SEMESTER OF SCHOOL YEAR 1987-88.
PLEASE SEE POSTED LETTER INFORMING THE DECS OF SAID "The Honorable Lourdes R. Quisumbing
DECISION, BSN I-IV, MIDWIFERY I-II AND JUNIOR SECRETARIAL Secretary of Education, Culture and Sports
STUDENTS ARE THEREFORE ADVISED TO SEEK THEIR Manila
EVENTUAL TRANSFER TO OTHER SCHOOLS FOR THE SECOND
SEMESTER. "Dear Madam Secretary:

"HERE IS A PARTIAL LIST OF SCHOOLS WILLING TO ACCEPT "Greetings!

STUDENTS TRANSFEREES:
"This is to reinforce our earlier letter, dated October 20, 1987, informing
"1. ARELLANO UNIVERSITY your honorable office of the corporate decision of our Board of Directors
"2. DE OCAMPO COLLEGE OF NURSING to cease operation of the Capitol Medical Center College immediately
"3. FATIMA COLLEGE OF NURSING effective as of the end of the first semester of the current school year,
"4. ST. JUDE COLLEGE OF NURSING 1987-1988.

"The decision as embodied in the corporate resolution contemplates in
no uncertain terms the immediate and total cessation of all education
activities due to the following cogent reasons:
"1. Mismanagement of the school administration and mishandling of
corporate policies by the Dean, extending down to the lower
administrative levels.
"2. Failure of the school to produce the quality of education that
maybe reasonably expected or desired as evidenced by the poor
quality of Instruction it gives, the deficient program of guidance it
maintains, and the poor performance of its graduates over the past few
years.
"3. The increasing costs of operation and maintenance of school
facilities.
"4. Considering the fact that the school is only a minor subsidiary of
the hospital corporation, its continued operation and dependent
existence will as projected, greatly impair the economic viability of the
institution and ultimately affect health care delivery and other vital
medical services of the hospital to the community and the general
public.
"For the above reasons, we feel there are no legal impediments against
the immediate and complete closure of the school under the purview of
the Corporation Code.
"Since there are quite a number of Nursing and Midwifery Schools in
the community who would be more than willing to take in our students,
we will help undertake arrangements with these schools for their
transfer, together with the assistance of your good office of course.
"Finally, we are very well aware of the requirements of the Labor Laws
concerning the faculty members and other support personnel who are
already permanent with at least three years of service. We shall settle
these in due time under its proper forum.
"Very truly yours,
"(SGD) THELMA NAVARRETE-CLEMENTE, M.D., M.H.A.
President
Chairman, Board of Directors"
(p. 270-271, Rollo; mphasis supplied.)
The Department of Labor and Employment (DOLE) was likewise
notified of the termination of the services of the faculty and other
support personnel of the college "thirty days hence" as required by
Article 284 of the Labor Code (p. 272, Rollo).
It appears that on October 26, 1987, or three (3) days before Dr.
Clemente wrote her second letter, DECS Regional Director Modesta
Boquiren had written the following reply which was received later:
"October 26, 1987
"The Chairman of the Board
and President
CAPITOL MEDICAL CENTER COLLEGE
Sct. Magbanua Cor. Panay Avenue
Quezon City
"Dear Madam:
"This has reference to your letter dated October 20, 1987 requesting for
a gradual phasing out of all courses effective June 1988 according to
the following schedules:
"June 1988 No 1st year
June 1989 No 2nd year
June 1990 No 3rd year
June 1991 No 4th year
"This Office interposes no objection to your request provided that the
school administrators can comply with the requirements of the
Department of Labor and Employment regarding the benefits of faculty
members and support personnel who are already permanent and who
have already served the school for three or more years.
"Pursuant to regulations, after all the courses shall have been phased
out, the school cannot reopen unless the corporate status is changed
from a stock corporation to a non-stock corporation.
"Very truly yours,
"(SGD) Illegible
"MODESTA G. BOQUIREN
"Director"
(p. 256, Rollo; mphasis supplied.)
Evidently, Director Boquiren failed to comprehend that Dr. Clemente did
not request for permission to "gradually phase out" the school but
merely informed the DECS of the school administration's decision to
effect the "immediate and complete closure" of the school. As the
DECS did not react to her second letter, CMCCI proceeded with the
closure of the college.
The teachers, students and their parents, a representative of the DECS
and the school administration, thereafter, held a series of dialogues to
persuade CMCCI to open the school for one more semester or until the
end of the school year. An agreement was prepared by the DECS but
CMCCI wanted to include a written stipulation binding the students and
their parents to hold no more strikes, rallies, or demonstrations until the
end of the school year. Since the latter did not sign the agreement, the
school did not reopen.
The college and the DECS have assisted in effecting the transfer of
some 411 students to other schools (p. 15, Rollo).
THE CASE
On December 2, 1987, fifteen (15) students and parents purporting to
represent the 900 students of the CMCC filed a class suit (Civil Case
No. 52429) against "Capitol Medical Center College" and petitioner Dr.
Clemente, in the Regional Trial Court of Quezon City praying for the
reopening of the Capitol Medical Center College which had been closed
effective at the end of the first semester of the school year 1987-1988
(p. 208, Rollo).
As the complaint (Annex A) prayed for the issuance of a writ of
preliminary mandatory injunction, the court set the hearing of the
application on December 9, 1987. As agreed at the hearing, an
opposition was filed by CMCC on December 14, 1987 (p. 257, Rollo).
On the same day, the lower court granted the writ of preliminary
mandatory injunction and directed the defendants "to reopen (the)
school and allow plaintiffs students to enroll in their respective course[s]
. . ." It fixed the plaintiffs' bond in the sum of P50,000 (pp. 85 and 273,
Rollo). The order reads as follows:
"Plaintiffs' petition for the issuance of a Writ of Preliminary Mandatory
Injunction having been heard by the Court, the plaintiffs appearing by
their lawyer, Atty. Raymundo Armovit and the defendants by their
attorney, Atty. Samson Alcantara and no sufficient cause to the contrary
being shown, the Court finds that this is a proper case for injunction and
the writ prayed for should issue; WHEREFORE, the Court hereby
orders that a Writ of Preliminary Mandatory Injunction issue against the
defendants directing them to re-open school and allow plaintiffs'
students to enroll in their respective courses of study and to perform
such other acts in the tenor and under the terms and conditions set
forth in paragraph 8 in the complaint filed in this action, upon the filing
of an injunction bond in the amount of FIFTY THOUSAND PESOS
(P50,000.00) within three (3) days from receipt of this order." (p. 84,
Rollo.)
The petitioners filed a motion for reconsideration of the above order (p.
87, Rollo) but the court denied their motion (p. 95, Rollo).
In due time, the petitioners elevated the order to the Court of Appeals
on a petition for certiorari with preliminary injunction (CA-G.R. SP No.
13626, p. 96, Rollo). The Court of Appeals issued a restraining order
and directed the respondents to comment on the petition.
After hearing the parties in oral argument, the Court of Appeals
rendered a decision on February 15, 1988 holding that the respondent
RTC Judge did not abuse his discretion in issuing the order of
preliminary mandatory injunction because the petitioners had no right to
suddenly close the school for the enrollment of the students created a
binding contract between them and the school for the latter to continue
operating until the former shall have finished their courses (p. 120,
Rollo).
On February 26, 1988, the petitioners filed a motion for reconsideration
and re-hearing which was held on March 3, 1988 (p. 127, Rollo).
Nevertheless, on March 8, 1988, the Court of Appeals denied
petitioner's motion for reconsideration (p. 154, Rollo). Hence, this
petition for review.
The petition for review has merit.
The sole object of a preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until the merits of the case can
be heard. The status quo is the last actual peaceable uncontested
status which preceded the controversy (Rodulfa vs. Alfonso, 76 Phil.
225). It may only be resorted to by a litigant for the preservation or
protection of his rights or interests and for no other purpose during the
pendency of the principal action (Calo vs. Roldan, 76 Phil. 445). It
should only be granted if the party asking for it is clearly entitled thereto
(Climaco vs. Macaraeg, 4 SCRA 930; Subido vs. Gopengco, 27 SCRA
455; Police Commission vs. Bello, 37 SCRA 230).
Inasmuch as a mandatory injunction tends to do more than to maintain
the status quo, it is generally improper to issue such an injunction prior
to the final hearing (Manila Electric Railroad and Light Co. vs. Del
Rosario, 22 Phil. 433). It may, however, issue "in cases of extreme
urgency; where the right is very clear; where considerations of relative
inconvenience bear strongly in complainant's favor; where there is a
willful and unlawful invasion of plaintiffs right against his protest and
remonstrance, the injury being a continuing one; and where the effect of
the mandatory injunction is rather to reestablish and maintain a
preexisting continuing relation between the parties, recently and
arbitrarily interrupted by the defendant, than to establish a new relation.
Indeed, the writ should not be denied the complainant when he makes
out a clear case, free from, doubt and dispute." (Commissioner of
Customs vs. Cloribel, et al., 19 SCRA 235.)
The questions that we might ask are:
(1) What was the status quo before the private respondents filed their
complaint "for specific performance" on December 2, 1987?
(2) Do the private respondents have a clear legal right to demand the
reopening of the school?
The status quo on December 2, 1987 was that the school was already
closed. CMCC was closed effective at the end of the first semester, i.e.,
the first week of November 1987.
What was the status quo prior to the closure of the school? There were
no classes. The school was deserted. The teachers and students were
on strike; they refused to attend classes and held noisy rallies in front of
the CMC hospital instead.
That was the status quo before the private respondents filed Civil Case
No. 52429. The writ of preliminary mandatory injunction was issued by
the trial court not to restore that status quo, but to restore conditions
preceding the status quo, i.e., to reopen and resume the holding of
classes which the private respondents themselves (plaintiffs in Civil
Case No. 52429) by their mass actions had disrupted. In issuing the
writ of preliminary injunction for that purpose, the trial court committed a
grave abuse of discretion for it allowed the writ to be used by the
plaintiffs to undo the mischief that they themselves had initiated.
The teachers, by refusing to teach, and the students, by refusing to
attend classes, made the continued operation of the CMCC futile and
untenable. The college had no reason to remain open under the
situation which the private respondents themselves brought about.
Did the private respondents have a clear legal right to reopen the
school and to be readmitted therein?
The Court of Appeals answered that question affirmatively on the theory
that "the initial enrollment" of the students (meaning their enrollment in
the first year of their chosen courses) created "a binding contract"
between the students and the school, by which the latter became
"legally and morally bound to continue operating the school until such
enrollees shall have finished their courses."
The Court of Appeals presumably, but erroneously, relied on paragraph
137, Sec. IV of the Manual of Regulations for Private Schools, which
provides:
"Every student has the right to enroll in any school, college or university
upon meeting its specific requirements and reasonable regulations,
provided, that except in the case of academic delinquency and violation
of disciplinary regulations, the student is presumed to be qualified for
enrollment for the entire period he is expected to complete his course
without prejudice to his right to transfer."
The meaning of this provision is that the school, after having accepted a
student for enrollment in a given course may not expel him or refuse to
re-enroll him until he completes his course, except when he is
academically deficient or has violated the rules of discipline. He is
presumed to be qualified to study there for the entire period it will take
to complete his course.
However, there is no contract between him and the school for the latter
to remain open for the entire duration of his course. Section VII,
paragraph No. 137, of the Manual of Regulations for Private Schools
provides:
"137. When a student registers in a school, it is understood that he is
enrolling for the entire school year for elementary and secondary
courses, and for the entire semester for collegiate course. A student
who transfers or otherwise withdraws, in writing, within two weeks after
the beginning of classes and who has already paid the pertinent tuition
and other school fees in full or for any length of time longer than one
month may be charged ten per cent of the total amount due for the term
if he withdraws within the first week of classes, or twenty per cent if
within the second week of classes, regardless of whether or not he has
actually attended classes. The student may be charged all the school
fees in full if he withdraws anytime after the second week of classes.
However, if the transfer or withdrawal is due to a justifiable reason, the
student shall be charged the pertinent fees only up to and including the
last month of attendance."
The contract between the college and a student who is enrolled and
pays the fees for a semester, is for the entire semester only, not for the
entire course. The law does not require a school to see a student
through to the completion of his course. If the school closes or is closed
by proper authority at the end of a semester, the student has no cause
of action for breach of contract against the school.

Thus did this Court rule in "Alcuaz, et al. vs. Philippine School of
Business Administration, Quezon City Branch, et al.," G.R. No. 76353,
promulgated on May 2, 1988, a case which involved some students and
teachers who had participated in mass actions and rallies in the
respondent school and who were respectively denied re-admission for
enrollment, and re-appointment to teaching positions in the school:
"It is beyond dispute that a student once admitted by the school is
considered enrolled for one semester. It is provided in Paragraph 137
Manual of Regulations for Private Schools, that when a college student
registers in a school, it is understood that he is enrolling for the entire
semester. Likewise, it is provided in the Manual, that the 'written
contracts' required for college teachers are for 'one semester.' It is thus
evident that after the close of the first semester, the PSBA-QC no
longer has any existing contract either with the students or with the
intervening teachers. Such being the case, the charge of denial of due
process is untenable. It is a time-honored principle that contracts are
respected as the law between the contracting parties (Henson vs.
Intermediate Appellate Court, et al., G.R. No. 72456, February 19,
1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs.
Court of Appeals, 100 SCRA 197). The contract having been
terminated, there is no more contract to speak of. The school cannot be
compelled to enter into another contract with said students and
teachers. The courts, be they the original trial court or the appellate
court, have no power to make contracts for the parties.' (Henson vs.
Intermediate Appellate Court, et al., supra." (p. 12 of the decision.).
Significantly, in Alcuaz only some students and teachers left their
classrooms to hold rallies in the school premises. The majority
remained in the classrooms. The school did not cease to operate. In
this case, however, all the teachers and students struck and abandoned
their classes.
In Alcuaz, the mass assemblies and barricades were held for three
days. In the CMCC case, the "strike" began on October 14 and
continued until the end of the semester.
In Alcuaz, the school did not close but it nevertheless refused to re-
admit the offending students and teachers. In this case, the school has
closed completely.
If in Alcuaz, this Court recognized the right of the school to refuse
admission to students guilty of breaches of discipline, and of the peace,
its right to close when the entire faculty and student population have
boycotted their classes, may not be denied. The irony for the school in
this case is that it was forced to close by student action, and is now
being forced to reopen by student action also, assisted by the lower
court. We cannot sanction the order of the lower court which gave aid
and comfort to the students who paralyzed the operation of the school
by their mass actions forcing it to shut down altogether. We cannot
approve a situation which would place a school at the mercy of its
students.
We, therefore, hold that the lower court gravely abused its discretion in
compelling the CMCC to reopen and re-admit the striking students for
enrollment in the second semester of their courses. Since their
contracts with the school were terminated at the end of the first
semester of 1987, and as the school has already ceased to operate,
they have no "clear legal right" to reenroll and the school has no legal
obligation to reopen and readmit them. No provision in the Education
Act of 1982, nor in the Manual of Regulations for Private Schools can
be, or has been, cited to support the novel view that a school is
obligated to remain open until its students have completed their courses
therein. Indeed, neither is there a law or rule that obligates a student
who has enrolled in a school, to remain there until he finishes his
course. On the contrary he may transfer at any time to any school that
is willing to accept him.
But even if it can be supposed that the enrollment of a student creates
an implied "binding contract" with the school to educate him for the
entire course, since a contract creates reciprocal rights and obligations,
the obligation of the school to educate a student would imply a
corresponding obligation on the part of the student to study and obey
the rules and regulations of the school. When students breach that
supposed contract by refusing to attend their classes, preferring to take
to the streets to mount a noisy demonstration against their school, the
latter may cancel the contract and close its doors. Its action would
neither be arbitrary nor unfair.
It was the trial court that acted arbitrarily or with grave abuse of
discretion in ordering the school to reopen and readmit the striking
students and teachers in spite of their refusal to desist from continuing
their disruptive mass actions against the school.
WHEREFORE, the petition for review is granted. The decision dated
May 15, 1988 of the Court of Appeals in CA-G.R. SP No. 13626 is
hereby set aside. The order and writ of preliminary mandatory injunction
issued by the Regional Trial Court of Quezon City, Branch 77, in Civil
Case No. Q-52429 are hereby annulled and set aside. Costs against
the private respondents.
SO ORDERED.
CASE 6
[1999V694] UNIVERSITY OF THE PHILIPPINES BOARD OF
REGENTS, CHANCELLOR ROGER POSADAS, vs. HON. COURT OF
APPEALSG.R. No. 134625D E C I S I O N
MENDOZA, J.:
For review before the Court is the decision of the Court of Appeals1
[Per Associate Justice Artemio G. Tuquero and concurred in by
Associate Justices Jorge S. Imperial and Eubulo G. Verzola.] in CA-
G.R. SP No. 42788, dated December 16, 1997, which granted private
respondent's application for a writ of mandatory injunction, and its
resolution, dated July 13, 1998, denying petitioners' motion for
reconsideration.
The antecedent facts are as follows:
Private respondent Arokiaswamy William Margaret Celine is a citizen of
India and holder of a Philippine visitor's visa. Sometime in April 1988,
she enrolled in the doctoral program in Anthropology of the University of
the Philippines College of Social Sciences and Philosophy (CSSP) in
Diliman, Quezon City.
After completing the units of course work required in her doctoral
program, private respondent went on a two-year leave of absence to
work as Tamil Programme Producer of the Vatican Radio in the Vatican
and as General Office Assistant at the International Right to Life
Federation in Rome. She returned to the Philippines in July 1991 to
work on her dissertation entitled, "Tamil Influences in Malaysia,
Indonesia and the Philippines."
On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P.
Department of Anthropology, wrote a letter to Dr. Maria Serena Diokno,
CSSP Associate Dean and Graduate Program Director, certifying that
private respondent had finished her dissertation and was ready for her
oral defense. Dr. Rolda suggested that the oral defense be held on
January 6, 1993 but, in a letter, dated February 2, 1993, Dr. Serena
Diokno rescheduled it on February 5, 1993. Named as members of the
dissertation panel were Drs. E. Arsenio Manuel, Serafin Quiason, Sri
Skandarajah, Noel Teodoro, and Isagani Medina, the last included as
the dean's representative.
After going over private respondent's dissertation, Dr. Medina informed
CSSP Dean Consuelo Joaquin-Paz that there was a portion in private
respondent's dissertation that was lifted, without proper
acknowledgment, from Balfour's Cyclopaedia of India and Eastern and
Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour 1885
reprint) and from John Edye's article entitled "Description of the Various
Classes of Vessels Constructed and Employed by the Natives of the
Coasts of Coromandel, Malabar, and the Island of Ceylon for their
Coasting Navigation" in the Royal Asiatic Society of Great Britain and
Ireland Journal, volume I, pp. 1-14 (1833).2 [Stated as 1883 in the
Petition for Certiorari.]
Nonetheless, private respondent was allowed to defend her dissertation
on February 5, 1993. Four (4) out of the five (5) panelists gave private
respondent a passing mark for her oral defense by affixing their
signatures on the approval form. These were Drs. Manuel, Quiason,
Skandarajah, and Teodoro. Dr. Quiason added the following
qualification to his signature:
Ms. Arokiaswamy must incorporate the suggestions I made during the
successful defense of her Ph.D. thesis.3 [Records, p. 26.]
Dr. Medina did not sign the approval form but added the following
comment:
Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na
ang mga revisions ng dissertation.4 [Ibid.]
Dr. Teodoro added the following note to his signature:
Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa
panel ang bound copies.5 [Supra, note 3.]
In a letter, dated March 5, 1993 and addressed to her thesis adviser,
Dr. Manuel, private respondent requested a meeting with the panel
members, especially Dr. Medina, to discuss the amendments
suggested by the panel members during the oral defense. The meeting
was held at the dean's office with Dean Paz, private respondent, and a
majority of the defense panel present.6 [Dr. Manuel Teodoro was
absent during the meeting.] During the meeting, Dean Paz remarked
that a majority vote of the panel members was sufficient for a student to
pass, notwithstanding the failure to obtain the consent of the Dean's
representative.
On March 24, 1993, the CSSP College Faculty Assembly approved
private respondent's graduation pending submission of final copies of
her dissertation.
In April 1993, private respondent submitted copies of her supposedly
revised dissertation to Drs. Manuel, Skandarajah, and Quiason, who
expressed their assent to the dissertation. Petitioners maintain,
however, that private respondent did not incorporate the revisions
suggested by the panel members in the final copies of her dissertation.
Private respondent left a copy of her dissertation in Dr. Teodoro's office
on April 15, 1993 and proceeded to submit her dissertation to the CSSP
without the approvals of Dr. Medina and Dr. Teodoro, relying on Dean
Paz's March 5, 1993 statement.
Dr. Teodoro later indicated his disapproval, while Dr. Medina did not
sign the approval form.7 [Records, p. 173.]
Dean Paz then accepted private respondent's dissertation in partial
fulfillment of the course requirements for the doctorate degree in
Anthropology.
In a letter to Dean Paz, dated April 17, 1993, private respondent
expressed concern over matters related to her dissertation. She sought
to explain why the signature of Dr. Medina was not affixed to the
revision approval form. Private respondent said that since she already
had the approval of a majority of the panel members, she no longer
showed her dissertation to Dr. Medina nor tried to obtain the latter's
signature on the revision approval form. She likewise expressed her
disappointment over the CSSP administration and charged Drs. Diokno
and Medina with maliciously working for the disapproval of her
dissertation, and further warned Dean Paz against encouraging
perfidious acts against her.
On April 17, 1993, the University Council met to approve the list of
candidates for graduation for the second semester of school year 1992-
1993. The list, which was endorsed to the Board of Regents for final
approval, included private respondent's name.
On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice
Chancellor for Academic Affairs, requesting the exclusion of private
respondent's name from the list of candidates for graduation, pending
clarification of the problems regarding her dissertation. Her letter
reads:8 [Records, p. 39.]
Abril 21, 1993
Dr. Milagros Ibe
Vice Chancellor for Academic Affairs
Unibersidad ng Pilipinas
Quezon Hall, Diliman, Q.C.
Mahal na Dr. Ibe,
Mahigpit ko pong hinihiling na hwag munang isama ang pangalan ni
Ms. Arokiaswam[y] William Margaret Celine sa listahan ng mga
bibigyan ng degri na Ph.D. (Anthropology) ngayon[g] semester, dahil sa
mga malubhang bintang nya sa ilang myembro ng panel para sa oral
defense ng disertasyon nya at sa mga akusasyon ng ilan sa mga ito sa
kanya.
Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago
makonfer ang degri kay Ms. Arokiaswam[y]. Kelangan po ito para
mapangalagaan ang istandard ng pinakamataas na degree ng
Unibersidad.
(Sgd.) CONSUELO JOAQUIN-PAZ, Ph.D.
Dekano
Apparently, however, Dean Paz's letter did not reach the Board of
Regents on time, because the next day, April 22, 1993, the Board
approved the University Council's recommendation for the graduation of
qualified students, including private respondent. Two days later, on
April 24, 1993, private respondent graduated with the degree of Doctor
of Philosophy in Anthropology.
On the other hand, Dean Paz also wrote a letter to private respondent,
dated April 21, 1993, that she would not be granted an academic
clearance unless she substantiated the accusations contained in her
letter dated April 17, 1993.
In her letter, dated April 27, 1993, private respondent claimed that Dr.
Medina's unfavorable attitude towards her dissertation was a reaction to
her failure to include him and Dr. Francisco in the list of panel
members; that she made the revisions proposed by Drs. Medina and
Teodoro in the revised draft of her dissertation; and that Dr. Diokno was
guilty of harassment.
In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina
formally charged private respondent with plagiarism and recommended
that the doctorate granted to her be withdrawn.9 [Rollo, pp. 201-202.]
On May 13, 1993, Dean Paz formed an ad hoc committee, composed
of faculty members from various disciplines and chaired by Dr. Eva
Duka-Ventura, to investigate the plagiarism charge against private
respondent. Meanwhile, she recommended to U.P. Diliman Chancellor,
Dr. Emerlinda Roman, that the Ph.D. degree conferred on private
respondent be withdrawn.10 [Id., p. 133.]
In a letter, dated June 7, 1993, Dean Paz informed private respondent
of the charges against her.11 [Records, p. 346.]
On June 15, 1993, the Ventura Committee submitted a report to Dean
Paz, finding at least ninety (90) instances or portions in private
respondent's thesis which were lifted from sources without proper or
due acknowledgment.
On July 28, 1993, the CSSP College Assembly unanimously approved
the recommendation to withdraw private respondent's doctorate degree
and forwarded its recommendation to the University Council. The
University Council, in turn, approved and endorsed the same
recommendation to the Board of Regents on August 16, 1993.
On September 6, 1993, the Board of Regents deferred action on the
recommendation to study the legal implications of its approval.12 [Id., p.
179.]
Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman
Chancellor Emerlinda Roman summoned private respondent to a
meeting on the same day and asked her to submit her written
explanation to the charges against her.
During the meeting, Chancellor Roman informed private respondent of
the charges and provided her a copy of the findings of the investigating
committee.13 [Records, p. 49.] Private respondent, on the other hand,
submitted her written explanation in a letter dated September 25, 1993.
Another meeting was held on October 8, 1993 between Chancellor
Roman and private respondent to discuss her answer to the charges. A
third meeting was scheduled on October 27, 1993 but private
respondent did not attend it, alleging that the Board of Regents had
already decided her case before she could be fully heard.
On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier,
U.P. President, alleging that some members of the U.P. administration
were playing politics in her case.14 [Id., p. 409.] She sent another letter,
dated December 14, 1993, to Dr. Armand Fabella, Chairman of the
Board of Regents, complaining that she had not been afforded due
process and claiming that U.P. could no longer withdraw her degree
since her dissertation had already been accepted by the CSSP.15 [Id.,
pp. 403-406.]
Meanwhile, the U.P. Office of Legal Services justified the position of the
University Council in its report to the Board of Regents. The Board of
Regents, in its February 1, 1994 and March 24, 1994 meetings, further
deferred action thereon.
On July 11, 1994, private respondent sent a letter to the Board of
Regents requesting a re-investigation of her case. She stressed that
under the Rules and Regulations on Student Conduct and Discipline, it
was the student disciplinary tribunal which had jurisdiction to decide
cases of dishonesty and that the withdrawal of a degree already
conferred was not one of the authorized penalties which the student
disciplinary tribunal could impose.
On July 28, 1994, the Board of Regents decided to release private
respondent's transcript of grades without annotation although it showed
that private respondent passed her dissertation with 12 units of credit.
On August 17, 1994, Chancellor Roger Posadas issued Administrative
Order No. 94-94 constituting a special committee composed of senior
faculty members from the U.P. units outside Diliman to review the
University Council's recommendation to withdraw private respondent's
degree. With the approval of the Board of Regents and the U.P. Diliman
Executive Committee, Posadas created a five-man committee, chaired
by Dr. Paulino B. Zafaralla, with members selected from a list of
nominees screened by Dr. Emerenciana Arcellana, then a member of
the Board of Regents. On August 31, 1994, the members of the
Zafaralla committee and private respondent met at U.P. Los Baños.
Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to
private respondent a copy of her transcript of grades and certificate of
graduation.
In a letter to Chancellor Posadas, dated September 1, 1994, private
respondent requested that the Zafaralla committee be provided with
copies of the U.P. Charter (Act No. 1870), the U.P. Rules and
Regulations on Student Conduct and Discipline, her letter-response to
Chancellor Roman, dated September 25, 1993, as well as all her other
communications.
On September 19, 1994, Chancellor Posadas obtained the Zafaralla
Committee's report, signed by its chairman, recommending the
withdrawal of private respondent's doctorate degree. The report
stated:16 [Rollo, p. 137.]
After going through all the pertinent documents of the case and
interviewing Ms. Arokiaswamy William, the following facts were
established:
1...........There is overwhelming evidence of massive lifting from a
published source word for word and, at times, paragraph by paragraph
without any acknowledgment of the source, even by a mere quotation
mark. At least 22 counts of such documented liftings were identified by
the Committee. These form part of the approximately ninety (90)
instances found by the Committee created by the Dean of the College
and subsequently verified as correct by the Special Committee. These
instances involved the following forms of intellectual dishonesty: direct
lifting/copying without acknowledgment, full/partial lifting with improper
documentation and substitution of terms or words (e.g., Tamil in place
of Sanskrit, Tamilization in place of Indianization) from an
acknowledged source in support of her thesis (attached herewith is a
copy of the documents for reference); and
2...........Ms. Arokiaswamy William herself admits of being guilty of the
allegation of plagiarism. Fact is, she informed the Special Committee
that she had been admitting having lifted several portions in her
dissertation from various sources since the beginning.
In view of the overwhelming proof of massive lifting and also on the
admission of Ms. Arokiaswamy William that she indeed plagiarized, the
Committee strongly supports the recommendation of the U.P. Diliman
Council to withdraw the doctoral degree of Ms. Margaret Celine
Arokiaswamy William.
On the basis of the report, the University Council, on September 24,
1994, recommended to the Board of Regents that private respondent
be barred in the future from admission to the University either as a
student or as an employee.
On January 4, 1995, the secretary of the Board of Regents sent private
respondent the following letter:17 [Records, p. 192.]
4 January 1995
Ms. Margaret Celine Arokiaswamy William
Department of Anthropology
College of Social Sciences and Philosophy
U.P. Diliman, Quezon City
Dear Ms. Arokiaswamy William:
This is to officially inform you about the action taken by the Board of
Regents at its 1081st and 1082nd meetings held last 17 November and
16 December 1994 regarding your case, the excerpts from the minutes
of which are attached herewith.
Please be informed that the members present at the 1081st BOR
meeting on 17 November 1994 resolved, by a majority decision, to
withdraw your Ph.D. degree as recommended by the U.P. Diliman
University Council and as concurred with by the External Review Panel
composed of senior faculty from U.P. Los Baños and U.P. Manila.
These faculty members were chosen by lot from names submitted by
the University Councils of U.P. Los Baños and U.P. Manila.
In reply to your 14 December 1994 letter requesting that you be given a
good lawyer by the Board, the Board, at its 1082nd meeting on 16
December 1994, suggested that you direct your request to the Office of
Legal Aid, College of Law, U.P. Diliman.

Sincerely yours,
(Sgd.)
VIVENCIO R. JOSE
Secretary of the University
and of the Board of Regents
On January 18, 1995, private respondent wrote a letter to
Commissioner Sedfrey Ordoñez, Chairman of the Commission on
Human Rights, asking the commission's intervention.18 [Commissioner
Ordoñez sent a letter to the Board of Regents requesting it to defer
action on private respondent's case until the latter had been given the
opportunity to be heard. U.P. President Emil Q. Javier responded with a
letter, dated February 17, 1995, assuring Commissioner Ordoñez that
the decision on private respondent's case was arrived at after
compliance with the requirements of due process.] In a letter, dated
February 14, 1995, to Secretary Ricardo Gloria, Chairman of the Board
of Regents, she asked for a reinvestigation of her case. She also
sought an audience with the Board of Regents and/or the U.P.
President, which request was denied by President Javier, in a letter
dated June 2, 1995.
On August 10, 1995, private respondent then filed a petition for
mandamus with a prayer for a writ of preliminary mandatory injunction
and damages, which was docketed as Civil Case No. Q-95-24690 and
assigned to Branch 81 of the Regional Trial Court of Quezon City.19 [It
appears that the case was later transferred to Branch 227.] She alleged
that petitioners had unlawfully withdrawn her degree without justification
and without affording her procedural due process. She prayed that
petitioners be ordered to restore her degree and to pay her
P500,000.00 as moral and exemplary damages and P1,500,000.00 as
compensation for lost earnings.
On August 6, 1996, the trial court, Branch 227, rendered a decision
dismissing the petition for mandamus for lack of merit.20 [Rollo, pp. 83-
97.] Private respondent appealed to the Court of Appeals, which on
December 16, 1997, reversed the lower court. The dispositive portion of
the appellate court's decision reads:21 [Id., p. 56.]
WHEREFORE, the decision of the court a quo is hereby reversed and
set aside. Respondents are ordered to restore to petitioner her degree
of Ph.D. in Anthropology.
No pronouncement as to costs.
SO ORDERED.
Hence, this petition. Petitioners contend:
I justification for the imposition of a disciplinary sanction upon an erring
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
GRANTING THE WRIT OF MANDAMUS AND ORDERING
PETITIONERS TO RESTORE RESPONDENT'S DOCTORAL
DEGREE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
HOLDING THAT THE DOCTORAL DEGREE GIVEN RESPONDENT
BY U.P. CANNOT BE RECALLED WITHOUT VIOLATING HER RIGHT
TO ENJOYMENT OF INTELLECTUAL PROPERTY AND TO JUSTICE
AND EQUITY.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN
DEPRIVING PETITIONERS OF THEIR RIGHT TO SUBSTANTIVE
DUE PROCESS.22 [Rollo, pp. 33-34.]
Petitioners argue that private respondent failed to show that she had
been unlawfully excluded from the use and enjoyment of a right or
office to which she is entitled so as to justify the issuance of the writ of
mandamus. They also contend that she failed to prove that the
restoration of her degree is a ministerial duty of U.P. or that the
withdrawal of the degree violated her right to the enjoyment of
intellectual property.
On the other hand, private respondent, unassisted by counsel, argue
that petitioners acted arbitrarily and with grave abuse of discretion in
withdrawing her degree even prior to verifying the truth of the plagiarism
charge against her; and that as her answer to the charges had not been
forwarded to the members of the investigating committees, she was
deprived of the opportunity to comment or refute their findings.
In addition, private respondent maintains that petitioners are estopped
from withdrawing her doctorate degree; that petitioners acted contrary
to 9 of the U.P. Charter and the U.P. Rules and Regulations on Student
Conduct and Discipline of the University, which according to her, does
not authorize the withdrawal of a degree as a penalty for erring
students; and that only the college committee or the student disciplinary
tribunal may decide disciplinary cases, whose report must be signed by
a majority of its members.
We find petitioners' contention to be meritorious.
Mandamus is a writ commanding a tribunal, corporation, board or
person to do the act required to be done when it or he unlawfully
neglects the performance of an act which the law specifically enjoins as
a duty resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such
other is entitled, there being no other plain, speedy, and adequate
remedy in the ordinary course of law.23 [Rules of Court, Rule 65, 3;
Anchangco, Jr. v. Ombudsman, 268 SCRA 301 (1997)] In University of
the Philippines Board of Regents v. Ligot-Telan,24 [227 SCRA 342
(1993)] this Court ruled that the writ was not available to restrain U.P.
from the exercise of its academic freedom. In that case, a student who
was found guilty of dishonesty and ordered suspended for one year by
the Board of Regents, filed a petition for mandamus and obtained from
the lower court a temporary restraining order stopping U.P. from
carrying out the order of suspension. In setting aside the TRO and
ordering the lower court to dismiss the student's petition, this Court
said:
The lower court gravely abused its discretion in issuing the writ of
preliminary injunction of May 29, 1993. The issuance of the said writ
was based on the lower court's finding that the implementation of the
disciplinary sanction of suspension on Nadal "would work injustice to
the petitioner as it would delay him in finishing his course, and
consequently, in getting a decent and good paying job." Sadly, such a
ruling considers only the situation of Nadal without taking into account
the circumstances, clearly of his own making, which led him into such a
predicament. More importantly, it has completely disregarded the
overriding issue of academic freedom which provides more than ample
student of an institution of higher learning.
From the foregoing arguments, it is clear that the lower court should
have restrained itself from assuming jurisdiction over the petition filed
by Nadal. Mandamus is never issued in doubtful cases, a showing of a
clear and certain right on the part of the petitioner being required. It is of
no avail against an official or government agency whose duty requires
the exercise of discretion or judgment.25 [Supra, at 361-362.]
In this case, the trial court dismissed private respondent's petition
precisely on grounds of academic freedom but the Court of Appeals
reversed holding that private respondent was denied due process. It
said:
It is worthy to note that during the proceedings taken by the College
Assembly culminating in its recommendation to the University Council
for the withdrawal of petitioner's Ph.D. degree, petitioner was not given
the chance to be heard until after the withdrawal of the degree was
consummated. Petitioner's subsequent letters to the U.P. President
proved unavailing.26 [Rollo, pp. 54-55.]

As the foregoing narration of facts in this case shows, however, various
committees had been formed to investigate the charge that private
respondent had committed plagiarism and, in all the investigations held,
she was heard in her defense. Indeed, if any criticism may be made of
the university proceedings before private respondent was finally
stripped of her degree, it is that there were too many committee and
individual investigations conducted, although all resulted in a finding
that private respondent committed dishonesty in submitting her doctoral
dissertation on the basis of which she was conferred the Ph.D. degree.
Indeed, in administrative proceedings, the essence of due process is
simply the opportunity to explain one's side of a controversy or a
chance to seek reconsideration of the action or ruling complained of.27
[Helpmate, Inc. v. National Labor Relations Commission, G.R. 112323,
July 28, 1997; M. Ramirez Industries v. The Honorable Secretary of
Labor and Employment, G.R. 89894, January 3, 1997.] A party who has
availed of the opportunity to present his position cannot tenably claim to
have been denied due process.28 [Naguiat v. National Labor Relations
Commission, 269 SCRA 564 (1997)]
In this case, private respondent was informed in writing of the charges
against her29 [Records, pp. 48-49.] and afforded opportunities to refute
them. She was asked to submit her written explanation, which she
forwarded on September 25, 1993.30 [Id., pp. 50-58.] Private
respondent then met with the U.P. chancellor and the members of the
Zafaralla committee to discuss her case. In addition, she sent several
letters to the U.P. authorities explaining her position.31 [Id., pp. 59-65;
79-80.]
It is not tenable for private respondent to argue that she was entitled to
have an audience before the Board of Regents. Due process in an
administrative context does not require trial-type proceedings similar to
those in the courts of justice.32 [National Federation of Labor v. NLRC,
283 SCRA 275 (1997)] It is noteworthy that the U.P. Rules do not
require the attendance of persons whose cases are included as items
on the agenda of the Board of Regents.33 [University of the Philippines
v. Ligot-Telan, 227 SCRA 342 (1993)]
Nor indeed was private respondent entitled to be furnished a copy of
the report of the Zafaralla committee as part of her right to due process.
In Ateneo de Manila University v. Capulong,34 [222 SCRA 644 (1993)]
we held:
Respondent students may not use the argument that since they were
not accorded the opportunity to see and examine the written statements
which became the basis of petitioners' February 14, 1991 order, they
were denied procedural due process. Granting that they were denied
such opportunity, the same may not be said to detract from the
observance of due process, for disciplinary cases involving students
need not necessarily include the right to cross examination. An
administrative proceeding conducted to investigate students'
participation in a hazing activity need not be clothed with the attributes
of a judicial proceeding. . .
In this case, in granting the writ of mandamus, the Court of Appeals
held:
First. Petitioner graduated from the U.P. with a doctorate degree in
Anthropology. After graduation, the contact between U.P. and petitioner
ceased. Petitioner is no longer within the ambit of the disciplinary
powers of the U.P. As a graduate, she is entitled to the right and
enjoyment of the degree she has earned. To recall the degree, after
conferment, is not only arbitrary, unreasonable, and an act of abuse,
but a flagrant violation of petitioner's right of enjoyment to intellectual
property.
Second. Respondents aver that petitioner's graduation was a mistake.
Unfortunately this "mistake" was arrived at after almost a year after
graduation. Considering that the members of the thesis panel, the
College Faculty Assembly, and the U.P. Council are all men and
women of the highest intellectual acumen and integrity, as respondents
themselves aver, suspicion is aroused that the alleged "mistake" might
not be the cause of withdrawal but some other hidden agenda which
respondents do not wish to reveal.
At any rate, We cannot countenance the plight the petitioner finds
herself enmeshed in as a consequence of the acts complained of.
Justice and equity demand that this be rectified by restoring the degree
conferred to her after her compliance with the academic and other
related requirements.
Art. XIV, 5 (2) of the Constitution provides that "[a]cademic freedom
shall be enjoyed in all institutions of higher learning." This is nothing
new. The 1935 Constitution35 [Art. XIV, 5.] and the 1973 Constitution36
[Art. XV, 8 (2)] likewise provided for the academic freedom or, more
precisely, for the institutional autonomy of universities and institutions of
higher learning. As pointed out by this Court in Garcia v. Faculty
Admission Committee, Loyola School of Theology,37 [68 SCRA 277
(1975)] it is a freedom granted to "institutions of higher learning" which
is thus given "a wide sphere of authority certainly extending to the
choice of students." If such institution of higher learning can decide who
can and who cannot study in it, it certainly can also determine on whom
it can confer the honor and distinction of being its graduates.
Where it is shown that the conferment of an honor or distinction was
obtained through fraud, a university has the right to revoke or withdraw
the honor or distinction it has thus conferred. This freedom of a
university does not terminate upon the "graduation" of a student, as the
Court of Appeals held. For it is precisely the "graduation" of such a
student that is in question. It is noteworthy that the investigation of
private respondent's case began before her graduation. If she was able
to join the graduation ceremonies on April 24, 1993, it was because of
too many investigations conducted before the Board of Regents finally
decided she should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher
learning, for the constitutional grant of academic freedom, to quote
again from Garcia v. Faculty Admission Committee, Loyola School of
Theology, "is not to be construed in a niggardly manner or in a grudging
fashion."
Under the U.P. Charter, the Board of Regents is the highest governing
body of the University of the Philippines.38 [Act No. 1870, 4.] It has the
power to confer degrees upon the recommendation of the University
Council.39 [Id., 9.] It follows that if the conferment of a degree is
founded on error or fraud, the Board of Regents is also empowered,
subject to the observance of due process, to withdraw what it has
granted without violating a student's rights. An institution of higher
learning cannot be powerless if it discovers that an academic degree it
has conferred is not rightfully deserved. Nothing can be more
objectionable than bestowing a university's highest academic degree
upon an individual who has obtained the same through fraud or deceit.
The pursuit of academic excellence is the university's concern. It should
be empowered, as an act of self-defense, to take measures to protect
itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their
education, the USC as an educational institution is also entitled to
pursue its academic freedom and in the process has the concomitant
right to see to it that this freedom is not jeopardized.40 [Licup v.
University of San Carlos, 178 SCRA 637 (1989)]
In the case at bar, the Board of Regents determined, after due
investigation conducted by a committee composed of faculty members
from different U.P. units, that private respondent committed no less
than ninety (90) instances of intellectual dishonesty in her dissertation.
The Board of Regents' decision to withdraw private respondent's
doctorate was based on documents on record including her admission
that she committed the offense.41 [Records, p. 192.]
On the other hand, private respondent was afforded the opportunity to
be heard and explain her side but failed to refute the charges of
plagiarism against her. Her only claim is that her responses to the
charges against her were not considered by the Board of Regents
before it rendered its decision. However, this claim was not proven.
Accordingly, we must presume regularity in the performance of official
duties in the absence of proof to the contrary.42 [Rules of Court, Rule
131, 3 (m)]
Very much the opposite of the position of the Court of Appeals that,
since private respondent was no longer a student of the U.P., the latter
was no longer within the "ambit of disciplinary powers of the U.P.," is
private respondent's contention that it is the Student Disciplinary
Tribunal which had jurisdiction over her case because the charge is
dishonesty. Private respondent invokes 5 of the U.P. Rules and
Regulations on Student Conduct and Discipline which provides:
Jurisdiction. - All cases involving discipline of students under these
rules shall be subject to the jurisdiction of the student disciplinary
tribunal, except the following cases which shall fall under the jurisdiction
of the appropriate college or unit;
(a)..........Violation of college or unit rules and regulations by students of
the college, or
(b)..........Misconduct committed by students of the college or unit within
its classrooms or premises or in the course of an official activity;
Provided, that regional units of the University shall have original
jurisdiction over all cases involving students of such units.
Private respondent argues that under 25 (a) of the said Rules and
Regulations, dishonesty in relation to one's studies (i.e., plagiarism)
may be punished only with suspension for at least one (1) year.
As the above-quoted provision of 5 of the Rules and Regulations
indicates, the jurisdiction of the student disciplinary tribunal extends
only to disciplinary actions. In this case, U.P. does not seek to discipline
private respondent. Indeed, as the appellate court observed, private
respondent is no longer within "the ambit of disciplinary powers of the
U.P." Private respondent cannot even be punished since, as she
claims, the penalty for acts of dishonesty in administrative disciplinary
proceedings is suspension from the University for at least one year.
What U.P., through the Board of Regents, seeks to do is to protect its
academic integrity by withdrawing from private respondent an academic
degree she obtained through fraud.
WHEREFORE, the decision of the Court of Appeals is hereby
REVERSED and the petition for mandamus is hereby DISMISSED.
SO ORDERED.
CASE 7
CAGAYAN CAPITOL COLLEGE AND LAUREANA S. ROSALES,
petitioners, vs. THE HON. NATIONAL LABOR RELATIONS
COMMISSION, VIRGILIO P. VILLEGAS AND LEONOR PAGAPONG,
respondents.1990 September 141st DivisionG.R. Nos. 90010-11D E
CISION
GANCAYCO, J.:
The propriety of the reinstatement of private respondents as faculty
members of petitioner college is the issue submitted in this petition.
Private respondents Virgilio Villegas and Leonor Pagapong were
teachers on a probational basis of the petitioner college.
Villegas was initially hired as an instructor in the Nautical Science
Department of said petitioner and was extended an appointment on a
ten-month contractual basis which ended on March 31, 1982.
Upon expiration of said contract he re-applied and was given a new
contract commencing on June 1, 1982 and ending on March 31, 1983.
Thereafter he re-applied for employment and was given a contract for a
fixed period starting June 1, 1983 up to March 31, 1984. Upon mutual
agreement the contract was extended to include the summer of 1984
up to May 31, 1984 which is still part of the school-year 1983-1984.
Upon expiration of said period he sent a letter re-applying for
employment with the petitioner.
His application, however, was turned down because of various
complaints from his students borne out by the report of his superiors
who investigated the matter. 1
Thus, he filed a complaint in the Regional Arbitration Office of the
National Labor Relations Commission (NLRC) in Cagayan City for
illegal dismissal with reinstatement, payment of backwages, moral
damages and attorney's fees.
Included in the complaint were claims for underpayment of salary,
allowances, wage orders and his share in tuition fee increases per
Presidential Decree No. 451. It was docketed as NLRC Case No. RAB-
C-0513-84.
On the other hand, respondent Pagapong was initially hired as a
probationary instructor in the High School Department of petitioner
college on June 15, 1981 on a contractual basis to end on March 31,
1982. Upon re-application her contract was renewed for another fixed
period covering June 1, 1982 up to March 31, 1983. Her employment
was on a probationary basis. Similarly, a third contract was executed by
the petitioner college covering the period starting June 15, 1983 and
ending on March 31, 1984. Upon the termination of the said third
contract respondent Pagapong wrote to petitioner seeking re-
employment. Her application was accompanied by a clearance.
However, her application was denied upon the recommendation of her
immediate superiors who considered her inefficient.
Thus, she filed with the Regional Arbitration Branch of the NLRC a
complaint for illegal dismissal with reinstatement, with backwages,
moral damages and attorney's fees. She also included claims for
underpayment of wages, allowances, wage orders and non-payment of
shares in tuition fee increases per Presidential Decree No. 451. It was
docketed as NLRC Case No. RAB-C-0560-84.
The cases of respondents Villegas and Pagapong were jointly heard
upon agreement of the parties, the issues and facts being identical.
In their position paper, private respondents Villegas and Pagapong
alleged that they were dismissed by petitioners without valid grounds
and that they were deprived of their constitutional right to due process
and security of tenure. They also raised the issue of non-compliance
with presidential decrees and wage orders pertaining to the payment of
emergency cost of living allowance (ECOLA) and their basic salary,
including non-payment of their shares in tuition fee increases under
Presidential Decree No. 451.
Petitioners, on the other hand, filed their position paper and
supplemental manifestations wherein they denied that private
respondents were illegally dismissed. They maintained that the private
respondents alleged employment contracts on a probation basis
expired and that the same were not renewed because their
performances were considered unsatisfactory while they were on
probation. Petitioners further contended that private respondents, as
probationary employees, did not qualify for tenureship as their services
on probation, upon evaluation, did not reach the standard prescribed for
probationary employees. Petitioners also denied that private
respondents are entitled to backwages, since they were not illegally
dismissed and asserted that they have been paid their wages,
allowances and their shares in tuition fee increases and that they were
not entitled to moral damages and attorney's fees.
On August 8, 1985, a decision was rendered by Executive Labor Arbiter
Ildefonso G. Agbuya dismissing the complaint for illegal dismissal
based on the following disquisition:
"From the above-quoted portion of the parties' position paper it is
undisputed that Complainants were hired on a ten (10) months
contractual basis as faculty members for a period of three (3)
consecutive contracts of employment (school year). Based on these
facts alone, the complaint for illegal dismissal should be dismissed
because it is judicial knowledge that probationary period of instructors
or faculty members of any particular school pursuant to the rules of the
Ministry of Education, Culture and Sports is for three (3) years. Since
the employment of Complainants fall (sic) within the probationary period
of three (3) years, it is therefore management's prerogative whether to
renew the same for permanency or stop the relationship as what
happened in this particular cases (sic). We are limiting the basis of our
opinion on the probationary period provided for by the Ministry of
Education, Culture and Sports and need not discuss the merits as
argued by both parties in their respective position paper (sic)." (pp. 211-
212, Records)." 2
Private respondents appealed said decision to the NLRC which
rendered a decision on May 30, 1989 modifying the appealed decision
in this manner:
"After a careful review of the records and based on the foregoing facts,
we find and so hold that the Labor Arbiter committed reversible error.
It is an undisputed fact that complainant Virgilio Villegas worked with
respondent Cagayan Capitol College for six (6) consecutive regular
semesters, as college instructor, while complainant Leonor Pagapong
worked with the same respondent for three (3) consecutive years as
classroom teacher.
In this regard, the Manual of Regulations for Private Schools expressly
provides that '. . . probationary period for academic personnel shall not
be more than . . . six (6) consecutive regular semesters for those in the
tertiary level'. (Section 102 of the Manual, 7th Edition, 1984). The same
Manual also provides that 'full-time teachers who have rendered three
(3) consecutive years of satisfactory service shall be considered
permanent' (Section 75, ibid.).
Based on this Manual of Regulations of Private Schools both
complainants obtained permanent status in their appointment with the
respondent Cagayan Capitol College and cannot be dismissed except
for cause. The non-renewal of their employment contract with the
respondent is therefore tantamount to illegal dismissal. Hence,
complainants are entitled to reinstatement with backwages and other
benefits.
As regards the claim for moral and exemplary damages, we concur with
the findings of the Labor Arbiter that the same is without basis. We
likewise adopt the award of attorney's fees of 10% out of the total
monetary award that complainants may receive.
WHEREFORE, the appealed Decision is hereby MODIFIED, declaring
respondents guilty of illegal dismissal and ordering respondents to
reinstate complainants to their former position or any equivalent
position with three (3) years backwages without qualification or
deduction.
Respondents are likewise ordered to pay 10% of the total award as
attorney's fee.
The claims for moral and exemplary damages are dismissed for lack of
merit." 3
A motion for reconsideration was filed by petitioners but this was denied
by the public respondent in a resolution dated July 28, 1989. 4 Hence
this petition wherein petitioners assail the said decision of public
respondent based on the following grounds:
"I.
THAT THE HON. NATIONAL LABOR RELATIONS COMMISSION
COMMITTED GRAVE ABUSE OF DISCRETION AND SERIOUSLY
ERRED IN INTERPRETING THE PERTINENT PROVISIONS OF THE
MANUAL OF REGULATIONS FOR PRIVATE SCHOOLS, 7th
EDITION, 1970, THE LABOR CODE OF THE PHILIPPINES AND
OTHER APPLICABLE LAWS AND JURISPRUDENCE BY RULING
THAT PRIVATE RESPONDENTS HAVE ACQUIRED PERMANENT
EMPLOYMENT STATUS AND CANNOT BE DISMISSED EXCEPT
FOR CAUSE.
II.
THAT PUBLIC RESPONDENT NATIONAL LABOR RELATIONS
COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AND
SERIOUSLY ERRED IN THE INTERPRETATION OF EXISTING LAWS
AND JURISPRUDENCE BY RULING THAT THE ACT OF
PETITIONERS IN NOT RENEWING THE TEACHING CONTRACTS
OF PRIVATE RESPONDENTS IS TANTAMOUNT TO ILLEGAL
DISMISSAL AND IN CONSEQUENTLY ORDERING THEIR
REINSTATEMENT WITH BACKWAGES." 5
In the same petition is a prayer for the issuance of a writ of preliminary
injunction to restrain the public respondent from enforcing the
questioned decision dated May 30, 1989 pending resolution of the
petition. In sum, the petitioner prays for the annulment of said decision
dated May 30, 1989 and the resolution dated July 28, 1989
promulgated by the NLRC.
Acting on the petition, the Court, on October 4, 1989, without giving due
course to the petition, required the respondents to comment thereon
within ten (10) days from notice and issued a temporary restraining
order enjoining the public respondent from enforcing the questioned
decision and resolution and further required petitioner to file a bond in
the amount of P20,000.00 within forty-eight (48) hours from notice.
After careful deliberation on the petition, the comment thereto of
respondents and the memoranda of the parties, the Court finds that the
petition is impressed with merit.
There is no question that private respondents were probationary
teachers.
Thus, they are covered by the policy instructions issued by the
Department of Labor and Employment that the probationary
employment of professional instructors and teachers shall be subject to
the standards established by the Department of Education and Culture.
Said standards are embodied in paragraph 75 of the Manual of
Regulations for Private Schools, as follows:
"75. Full time teachers who have rendered three (3) consecutive years
of satisfactory services shall be considered permanent."
In University of Sto. Tomas vs. National Labor Relations Commission,
6 this Court in interpreting the foregoing rule, held that the legal
requisites for a teacher to acquire permanent employment and security
of tenure are as follows:
"(1) The teacher is a full time teacher;
(2) The teacher must have rendered three (3) consecutive years of
service; and
(3) Such service must have been satisfactory."
There is no question that private respondents have been employed for
three (3) consecutive years as teachers at petitioners' college and on a
full time basis. However, they do not automatically become permanent
unless it is shown that their services during the probationary period
were satisfactory.
The contention of respondents that upon termination of the three-year
probationary period the teacher automatically becomes permanent is
not quite correct. It must be conditioned on the compliance with the
third requisite that the services of said teacher during the probationary
period was satisfactory.
The employer is the one who is to set the standards and determine
whether or not the services of an employee are satisfactory. It is the
prerogative of an employer to determine whether or not the said
standards have been complied with. In fact, it is the right of the
employer to shorten the probationary period if he is impressed with the
services of the employees.
This prerogative of a school to provide standards for its teachers and to
determine whether or not these standards have been met is in
accordance with academic freedom and constitutional autonomy which
give educational institution the right to choose who should teach. 7
At the start of their employment, private respondents were duly
furnished the Faculty Manual expressly stating among others, the
duties of teachers and the grounds for termination of employment or
non-appointment to permanent
status of a probationary employee.
In the case of respondent Villegas, it appears that there were
complaints of students during his last year of service and that these
complaints were duly investigated by the Acting Dean of the Nautical
Department who came up with the report of the acts complained of. 8
Thus, his performance was considered unsatisfactory and was not
renewed by petitioner college after the third year. That he was made to
teach in the summer of 1984 appears to be prompted by the fact that
the summer sessions were still part of the third probationary period
which started in July of the first semester of school year 1981-82.
Similarly, respondent Pagapong was found to be inefficient due to her
absences.
The Court thus finds and so holds that private respondents were not
illegally dismissed by petitioner.
WHEREFORE, the petition is hereby GRANTED and the questioned
decision and resolution of the National Labor Relations Commission
dated May 30, 1989 and July 28, 1989, respectively, are hereby SET
ASIDE and another decision is hereby rendered DISMISSING the
complaints filed by private respondents. The restraining order issued by
the Court on October 4, 1989 is hereby made permanent.
SO ORDERED.
LOCAL GOVERNMENT
Case 1
[1998V576E] BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION
ON ELECTIONS and JOSE T. CAPCO, JR., respondents.1998 Sep
3En BancG.R. No. 133495D E C I S I O N
MENDOZA, J.:
This case presents for determination the scope of the constitutional
provision barring elective officials, with the exception of barangay
officials, from serving more than three consecutive terms. In particular,
the question is whether a vice-mayor who succeeds to the office of
mayor by operation of law and serves the remainder of the term is
considered to have served a term in that office for the purpse of the
three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of
Pateros on January 18, 1988 for a term ending June 30, 1992. On
September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was
elected mayor for a term of three years which ended on June 30, 1995.
On May 8, 1995, he was reelected mayor for another term of three
years ending June 30, 1998.1 [Rollo, pp. 5-6, 124-125.]
On March 27, 1998, private respondent Capco filed a certificate of
candidacy for mayor of Pateros relative to the May 11, 1998 elections.
Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor,
sought Capco’s disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998
and would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections
ruled in favor of petitioner and declared private respondent Capco
disqualified from running for reelection as mayor of Pateros.2 [Id., pp.
63-71] However, on motion of private respondent, the COMELEC en
banc, voting 5-2, reversed the decision and declared Capco eligible to
run for mayor in the May 11, 1998 elections.3 [Id., pp. 30-32.] The
majority stated in its decision:
In both the Constitution and the Local Government Code, the three-
term limitation refers to the term of office for which the local official was
elected. It made no reference to succession to an office to which he
was not elected. In the case before the Commission, respondent Capco
was not elected to the position of mayor in the January 18, 1988 local
elections. He suecceeded to such office by operation of law ans served
for the unexpired term of his predecessor. Consequently, such
successioin into office is not counted as one (1) term for purposes of
the computation of the three-term limitation under the Consittution and
the Loca Government Code.
Accordingly, private respondent was voted for in the elections. He
received 16,558 votes against petitioner’s 7,773 votes and was
proclaimed elected by the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated
May 7, 1998, of he COMELEC and to seed a declaration that private
respondent is disqualified to serve another term as Mayor of Pateros,
Metro Manila.
Peitioner contends that private respondent Capco’s servce as mayor
from September 2, 1989 to June 30, 992 should be considered as
service for full one term, and since he thereafter served from 1992 to
1998 two more terms as mayor, he should be considered to have seved
three consecutive terms within the contemplation of Art. X, §8 of the
Constitution and §43(b) of the Local Government Code. Petitioner
stresses the fact that, upon the death of Mayor Cesar Borja on
September 2, 1989, private respondent became the mayor and
thereafter served the remainder of the term. Petitioner argues that it is
irrelevant that private respondent became mayor by succession
because the purpose of the constitutional provision in limiting the
number of terms elective local officials may serve is to prevent a
monopolization of political power.
This contention will not bear analysis. Article X, §8 of the Constitution
provides:
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.
This provision is restated in §43(b) of the Local Government Code (R.A.
No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in
the continuity of service for the full term for which the elective official
concerned was elected.
First, to prevent the establishment of political dynasties is not the only
policy embodied in the constitutional provision in question. The other
policy is that of enhancing the freedom of choiceof the people. To e term
consider, therefore, only stay in office regardless of how the official rule?
concerned came to that office whether by election or by succession by
operation of law would be to disregard one of the purposes of the
constitutional provision in question.
THE FACTS:
Thus, a consideration of the historical background of Art. X, §8 of the
Constitution reveals that the members of the Constitutional Commission
were as much concerned with preserving the freedom of choice of the
For four (4) successive regular elections, namely, the 2001,
people as they were with preventing the monopolization of political
2004, 2007 and 2010 national and local elections, Abundo vied for the
power. Indeed, they rejected a proposal put forth by Commissioner
position of municipal mayor of Viga, Catanduanes. In both the 2001 and
Edmundo F. Garcia that after serving three consecutive terms or nine
2007 runs, he emerged and was proclaimed as the winning mayoralty
years there should be no further reelection for local and legislative
candidate and accordingly served the corresponding terms as mayor. In
officials. Instead, they adopted the alternative proposal of
the 2004 electoral derby, however, the Viga municipal board of
Commissioner Christian Monsod that such officials be simply barred
canvassers initially proclaimed as winner one Jose Torres (Torres),
from running for the same position in the succeeding election following
who, in due time, performed the functions of the office of mayor.
the expiration of the third consecutive term.4 [2 RECORD OF THE
Abundo protested Torres’ election and proclamation. Abundo was
CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 1986)
eventually declared the winner of the 2004 mayoralty electoral contest,
(hereafter cited as RECORD)] Monsod warned against "prescreening
paving the way for his assumption of office starting May 9, 2006 until
candidates [from] whom the people will choose" as a result of the
the end of the 2004-2007 term on June 30, 2007, or for a period of a
proposed absolute disqualification, considering that the draft
little over one year and one month.
constitution provision "recognizing people’s power."5 [Id., at 236.]

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

Then came the May 10, 2010 elections where Abundo and
The principle involved is really TIMED OUT Torres again opposed each other. When Abundo filed his certificate of
candidacy for the mayoralty seat relative to this electoral contest,
CASE 2 Torres lost no time in seeking the former’s disqualification to run, the
corresponding petition, docketed as SPA Case No. 10-128 (DC),
predicated on the three-consecutive term limit rule. On June 16, 2010,
the COMELEC First Division issued a Resolution finding for Abundo,
MAYOR ABELARDO who in the meantime bested Torres by 219 Votes and was accordingly
ABUNDO., SR. VS. proclaimed 2010 mayor-elect of Viga, Catanduanes.
COMELEC & ERNESTO
VEGA, G.R. No. 201716,
JANUARY 08, 2013
Meanwhile, on May 21, 2010, or before the COMELEC could
resolve the adverted disqualification case Torres initiated against
Abundo, herein private respondent Ernesto R. Vega (Vega)
In 2001, he commenced a quo warranto7 action before the RTC-Br. 43 in Virac,
won as Catanduanes, docketed as Election Case No. 55, to unseat Abundo on
Mayor. In essentially the same grounds Torres raised in his petition to disqualify.
2004, his
opponent
was
initially By Decision8 of August 9, 2010 in Election Case No. 55, the
proclaimed RTC declared Abundo ineligible to serve as municipal mayor, disposing
winner but as follows:
on Protest,
he was
declared
WHEREFORE, Decision is,
Mayor in
hereby, rendered GRANTING
May, 2006
the petition and declaring
so he was
Abelardo Abundo, Sr. ineligible
able to
to serve as municipal mayor of
serve 1
Viga, Catanduanes.
year of his
supposed
3-year
term. In In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC found
2007, he Abundo to have already served three consecutive mayoralty terms, to
won again wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for
as Mayor. another, i.e., fourth, consecutive term. Abundo, the RTC noted, had
May he run been declared winner in the aforesaid 2004 elections consequent to his
for Mayor protest and occupied the position of and actually served as Viga mayor
in the May for over a year of the remaining term, i.e., from May 9, 2006 to June 30,
2010 2007, to be exact.
elections
without
violating
the 3- To the RTC, the year and a month service constitutes a
consecutiv complete and full
service of Abundo’s second term as mayor. Therefrom, Abundo
appealed to the COMELEC, his recourse docketed as EAC (AE) No. A-
25-2010.
On February 8, 2012, in EAC (AE) No. A-25-2010, the
COMELEC’s Second Division rendered the first assailed Resolution,
the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the
decision of the
Regional Trial Court Branch 73, Virac,
Catanduanes is AFFIRMED and
the appeal is DISMISSED for lack of merit.
Just like the RTC, the COMELEC’s Second Division ruled
against Abundo on the strength of Aldovino, Jr. and held that service of
the unexpired portion of a term by a protestant who is declared winner
in an election protest is considered as service for one full term within
the contemplation of the three-term limit rule.
In time, Abundo sought but was denied reconsideration by the
COMELEC en banc per its equally assailed Resolution of May 10,
2012. The COMELEC en banc’s Resolution reads as follows:
WHEREFORE, premises considered, the motion for
reconsideration is DENIED for lack of merit. The
Resolution of the
Commission (Second Division) is hereby
AFFIRMED.
SO ORDERED.12
In affirming the Resolution of its Second Division, the
COMELEC en banc held in essence the following: first, there was no
involuntary interruption of Abundo’s 2004-2007 term service which
would be an exception to the three-term limit rule as he is considered
never to have lost title to the disputed office after he won in his election
protest; and second, what the Constitution prohibits is for an elective
official to be in office for the same position for more than three
consecutive terms and not to the service of the term.
On June 29, 2012, the COMELEC ECAD Bailiff personally
delivered the entire records of the instant case to, and were duly
received by, the clerk of court of RTC-Br. 43. On June 29, 2012, or on
the same day of its receipt of the case records, the RTC-Br. 43 in Virac,
Catanduanes granted Vega’s Motion for Execution through an Order of
even date. And a Writ of Execution19 was issued on the same day. On
July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of Execution and
served the same at the office of Mayor Abundo on the same day via
substituted service. On July 3, 2012, the Court issued a TRO20
enjoining the enforcement of the assailed COMELEC Resolutions. On
July 4, 2012, Vega received the Court’s July 3, 2012 Resolution21 and
a copy of the TRO. On the same day, Vice-Mayor Emeterio M. Tarin
and First Councilor Cesar O. Cervantes of Viga, Catanduanes took their
oaths of office22 as mayor and vice-mayor of Viga, Catanduanes,
respectively.
Core Issue:
Whether or not Abundo is deemed to have served three (3)
consecutive terms
The pivotal determinative issue then is whether the service of
a term less than the full three years by an elected official arising from
his being declared as the duly elected official upon an election protest is
considered as full service of the term for purposes of the application of
the three consecutive term limit for elective local officials.
On this core issue, We find the petition meritorious. The
consecutiveness of what otherwise would have been Abundo’s three
successive, continuous mayorship was effectively broken during the
2004- 2007 term when he was initially deprived of title to, and was
veritably disallowed to serve and occupy, an office to which he, after
due proceedings, was eventually declared to have been the rightful
choice of the electorate.
The three-term limit rule for elective local officials, a
disqualification rule, is found in Section 8, Article X of the 1987
Constitution, which provides:
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
fullterm for which he was elected. (Emphasis
supplied.)
and is reiterated in Sec. 43(b) of Republic Act No. (RA) 7160,
or the Local
Government Code (LGC) of 1991, thusly:
Sec. 43. Term of Office. —
(b) No local elective official shall serve for more
than three (3)
consecutive terms in the same position.
Voluntary renunciation of the
office for any length of time shall not be considered
as an interruption in
the continuity of service for the full term for which
the elective official
concerned was elected.
 To constitute a disqualification to run for an elective local
office pursuant to the aforequoted constitutional and statutory
provisions, the following requisites must concur.
(1) that the official concerned has been elected for
three consecutive
terms in the same local government post; and
(2) that he has fully served three consecutive
terms.
Judging from extant jurisprudence, the three-term limit rule,
as applied to the different factual milieus, has its complicated side. We
shall revisit and analyze the various holdings and relevant
pronouncements of the Court on the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as
well as in Sec. 43(b) of the LGC, voluntary renunciation of the office by
the incumbent elective local official for any length of time shall NOT, in
determining service for three consecutive terms, be considered an
interruption in the continuity of service for the full term for which the
elective official concerned was elected. In Aldovino, Jr., however, the
Court stated the observation that the law “does not textually state that
voluntary renunciation is the only actual interruption of service that does
not affect ‘continuity of service for a full term’ for purposes of the three-
term limit rule.”
As stressed in Socrates v. Commission on Elections, the
principle behind the three-term limit rule covers only consecutive terms
and that what the Constitution prohibits is a consecutive fourth term.
Put a bit differently, an elective local official cannot, following his third
consecutive term, seek immediate reelection for a fourth term,34 albeit
he is allowed to seek a fresh term for the same position after the
election where he could have sought his fourth term but prevented to do
so by reason of the prohibition. There has, in fine, to be a break or
interruption in the successive terms of the official after his or her third
term. An interruption usually occurs when the official does not seek a
fourth term, immediately following the third. Of course, the basic law is
unequivocal that a “voluntary renunciation of the office for any length of
time shall NOT be considered an interruption in the continuity of service
for the full term for which the elective official concerned was elected.”
This qualification was made as a deterrent against an elective local
official intending to skirt the three-term limit rule by merely resigning
before his or her third term ends. This is a voluntary interruption as
distinguished from involuntary interruption which may be brought about
by certain events or causes.
While appearing to be seemingly simple, the three-term limit
rule has engendered a host of disputes resulting from the varying
interpretations applied on local officials who were elected and served
for three terms or more, but whose terms or service was punctuated by
what they view as involuntary interruptions, thus entitling them to a, but
what their opponents perceive as a proscribed, fourth term. Involuntary
interruption is claimed to result from any of these events or causes:
succession or assumption of office by operation of law, preventive
suspension, declaration of the defeated candidate as the winner in an
election contest, declaration of the proclaimed candidate as the losing
party in an election contest, proclamation of a noncandidate as the
winner in a recall election, removal of the official by operation of law,
and other analogous causes.
This brings us to an examination of situations and
jurisprudence wherein such consecutive terms were considered or not
considered as having been “involuntarily interrupted or broken.”
(1) Assumption of Office by Operation of Law
In Borja, Jr. v. Commission on Elections and Jose T.
Capco, Jr. (1998) and Montebon v. Commission on Elections
(2008), the Court delved on the effects of “assumption to office by
operation of law” on the three-term limit rule. This contemplates a
situation wherein an elective local official fills by succession a higher
local government post permanently left vacant due to any of the
following contingencies, i.e., when the supposed incumbent refuses to
assume office, fails to qualify, dies, is removed from office, voluntarily
resigns or is otherwise permanently incapacitated to discharge the
functions of his office.
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-
mayor of Pateros on January 18, 1988 for a term ending June 30, 1992.
On September 2, 1989, Capco became mayor, by operation of law,
upon the death of the incumbent mayor, Cesar Borja. Capco was then
elected and served as mayor for terms 1992-1995 and 1995 1998.
When Capco expressed his intention to run again for the mayoralty
position during the 1998 elections, Benjamin U. Borja, Jr., who was
then also a candidate for mayor, sought Capco’s disqualification for
violation of the three-term limit rule.
Finding for Capco, the Court held that for the disqualification
rule to apply, “it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been
elected to the same position for the same number of times before the
disqualification can apply.” There was, the Court ruled, no violation of
the three-term limit, for Capco “was not elected to the office of the
mayor in the first term but simply found himself thrust into it by
operation of law” when a permanent vacancy occurred in that office.
The Court arrived at a parallel conclusion in the case of
Montebon. There, Montebon had been elected for three consecutive
terms as municipal councilor of Tuburan, Cebu in 1998-2001, 2001-
2004, and 2004-2007. However, in January 2004, or during his second
term, Montebon succeeded and assumed the position of vice-mayor of
Tuburan when the incumbent vice-mayor retired. When Montebon filed
his certificate of candidacy again as municipal councilor, a petition for
disqualification was filed against him based on the three-term limit rule.
The Court ruled that Montebon’s assumption of office as vice-mayor in
January 2004 was an interruption of
his continuity of service as councilor. The Court emphasized that
succession in local government office is by operation of law and
as such, it is an involuntary severance from office. Since the law no
less allowed Montebon to vacate his post as councilor in order to
assume office as vice mayor, his occupation of the higher office cannot,
without more, be deemed as a voluntary renunciation of his position as
councilor.
(2) Recall Election
With reference to the effects of recall election on the
continuity of service, Adormeo v. Commission on Elections (2002)
and the aforementioned case of Socrates (2002) provide guidance.
In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and
served as mayor of Lucena City during terms 1992-1995 and 1995-
1998. During the 1998 elections, Talaga lost to Bernard G. Tagarao.
However, before Tagarao’s 1998-2001 term ended, a recall election
was conducted in May 2000 wherein Talaga won and served the
unexpired term of Tagarao until June 2001. When Talaga ran for mayor
in 2001, his candidacy was challenged on the ground he had already
served as mayor for three consecutive terms for violation of the three
term-limit rule. The Court held therein that the remainder of Tagarao’s
term after the recall election during which Talaga served as mayor
should not be considered for purposes of applying the three-term limit
rule. The Court emphasized that the continuity of Talaga’s
mayorship was disrupted by his defeat during the 1998 elections.
 A similar conclusion was reached by the Court in Socrates.
The petitioners in that case assailed the COMELEC Resolution which
declared Edward Hagedorn qualified to run for mayor in a recall
election. It appeared that Hagedorn had been elected and served as
mayor of Puerto Princesa City for three consecutive terms: in 1992-
1995, 1995-1998 and 1998-2001.
Obviously aware of the three-term limit principle, Hagedorn
opted not to vie for the same mayoralty position in the 2001 elections, in
which Socrates ran and eventually won. However, midway into his term,
Socrates faced recall proceedings and in the recall election held,
Hagedorn run for the former’s unexpired term as mayor. Socrates
sought Hagedorn’s disqualification under the three-term limit rule. In
upholding Hagedorn’s candidacy to run in the recall election, the Court
ruled:
x x x After Hagedorn ceased to be mayor
on June 30, 2001, he became a private
citizen until the recall election of
September 24, 2002 when he won by
3,018 votes over his closest opponent,
Socrates. From June 30, 2001 until the
recall election on September 24, 2002,
the mayor of Puerto Princesa was
Socrates. During the same period,
Hagedorn was simply a private citizen.
This period is clearly an interruption in the
continuity of Hagedorn’s service as
mayor, not because of his voluntary
renunciation, but because of a legal
prohibition.
The Court likewise emphasized in Socrates that “an elective
local official cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the same office
following the end of the third consecutive term [and, hence], [a]ny
subsequent election, like recall election, is no longer covered x x x.”
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a
city does not constitute an interruption of the incumbent official’s
continuity of service.
The Court said so in Latasa v. Commission on Elections
(2003). Latasa is cast against the ensuing backdrop: Arsenio A. Latasa
was elected and served as mayor of the Municipality of Digos, Davao
del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his
third term, Digos was converted into a component city, with the
corresponding cityhood law providing the holdover of elective officials.
When Latasa filed his certificate of candidacy as mayor for the 2001
elections, the Court declared Latasa as disqualified to run as mayor of
Digos City for violation of the three-term limit rule on the basis of the
following ratiocination:
This Court believes that (Latasa) did
involuntarily relinquish his office as municipal mayor
since the said office has been deemed abolished
due to the conversion. However, the very instant
he vacated his office as municipal mayor, he
also assumed office as city mayor. Unlike in
Lonzanida, where petitioner therein, for even just a
short period of time, stepped down from office,
petitioner Latasa never ceased from acting as
chief executive of the local government unit. He
never ceased from discharging his duties and
responsibilities as chief executive of Digos.
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the
doctrine that the period during which a local elected official is under
preventive suspension cannot be considered as an interruption of
the continuity of his service. The Court explained why so:
Strict adherence to the intent of the three-
term limit rule demands that preventive suspension
should not be considered an interruption that allows
an elective official’s stay in office beyond three
terms. A preventive suspension cannot simply
be a term interruption because the suspended
official continues to stay in office although he is
barred from exercising the functions and
prerogatives of the office within the suspension
period. The best indicator of the suspended
official’s continuity in office is the absence of a
permanent replacement and the lack of the
authority to appoint one since no vacancy exists.
(5) Election Protest
With regard to the effects of an election protest vis-à-vis the
three-term limit rule, jurisprudence presents a more differing picture.
The Court’s pronouncements in Lonzanida v. Commission on Elections
(1999), Ong v. Alegre (2006), Rivera III v. Commission on Elections
(2007) and Dizon v. Commission on Elections (2009), all protest cases,
are illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served
as municipal mayor of San Antonio, Zambales in terms 1989-1992,
1992-1995 and 1995-1998. However, his proclamation relative to the
1995 election was protested and was eventually declared by the RTC
and then by COMELEC null and void on the ground of failure of
elections. On February 27, 1998, or about three months before the May
1998 elections, Lonzanida vacated the mayoralty post in light of a
COMELEC order and writ of execution it issued. Lonzanida’s opponent
assumed office for the remainder of the term. In the May 1998
elections, Lonzanida again filed his certificate of candidacy. His
opponent, Efren Muli, filed a petition for disqualification on the ground
that Lonzanida had already served three consecutive terms in the same
post. The Court, citing Borja Jr., reiterated the two (2) conditions which
must concur for the three-term limit to apply: “1) that the official
concerned has been elected for three consecutive terms in the same
local government post and 2) that he has fully served three consecutive
terms.”
In view of Borja, Jr., the Court ruled that the foregoing
requisites were absent in the case of Lonzanida. The Court held that
Lonzanida cannot be considered as having been duly elected to the
post in the May 1995 elections since his assumption of office as mayor
“cannot be deemed to have been by reason of a valid election but by
reason of a void proclamation.” And as a corollary point, the Court
stated that Lonzanida did not fully serve the 1995-1998 mayoral term
having been ordered to vacate his post before the expiration of the
term, a situation which amounts to an involuntary relinquishment of
office.
This Court deviated from the ruling in Lonzanida in Ong v.
Alegre owing to a variance in the factual situations attendant. In that
case, Francis Ong (Ong) was elected and served as mayor of San
Vicente, Camarines Norte for terms 1995-1998, 1998-2001, and 2001-
2004. During the 1998 mayoralty elections, or during his supposed
second term, the COMELEC nullified Ong’s proclamation on the
postulate that Ong lost during the 1998 elections. However, the
COMELEC’s decision became final and executory on July 4, 2001,
when Ong had fully served the 1998- 2001 mayoralty term and was in
fact already starting to serve the 2001-2004 term as mayor-elect of the
municipality of San Vicente. In 2004, Ong filed his certificate of
candidacy for the same position as mayor, which his opponent opposed
for violation of the three-term limit rule. Ong invoked the ruling in
Lonzanida and argued that he could not be considered as having
served as mayor from 1998-2001 because he was not duly elected to
the post and merely assumed office as a “presumptive winner.”
Dismissing Ong’s argument, the Court held that his assumption of office
as mayor for the term 1998-2001 constitutes “service for the full term”
and hence, should be counted for purposes of the three term limit rule.
The Court modified the conditions stated in Lonzanida in the sense that
Ong’s service was deemed and counted as service for a full term
because Ong’s proclamation was voided only after the expiry of the
term. The Court noted that the COMELEC decision which declared Ong
as not having won the 1998 elections was “without practical and legal
use and value” promulgated as it was after the contested term has
expired. The Court further reasoned:
Petitioner [Francis Ong’s] contention that he was
only a presumptive winner in the 1998 mayoralty derby
as his proclamation was under protest did not make him
less than a duly elected mayor. His proclamation as
the duly elected mayor in the 1998 mayoralty
election coupled by his assumption of office and his
continuous exercise of the functions thereof from
start to finish of the term, should legally be taken as
service for a full term in contemplation of the three-
term rule. The absurdity and the deleterious effect of a
contrary view is not hard to discern. Such contrary view
would mean that Alegre would – under the three-term
rule - be considered as having served a term by virtue of
a veritably meaningless electoral protest ruling, when
another actually served such term pursuant to a
proclamation made in due course after an election.
The Court did not apply the ruling in Lonzanida and ruled that
the case of Ong was different, to wit:
The difference between the case at bench and
Lonzanida is at once apparent. For one, in Lonzanida,
the result of the mayoralty election was declared a nullity
for the stated reason of "failure of election", and, as a
consequence thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an order for him to
vacate the office of mayor. For another, Lonzanida did
not fully serve the 1995-1998 mayoral term, there being
an involuntary severance from office as a result of legal
processes. In fine, there was an effective interruption of
the continuity of service.
Ong’s slight departure from Lonzanida would later find
reinforcement in the consolidated cases of Rivera III v. Commission on
Elections53 and Dee v. Morales. Therein, Morales was elected mayor
of Mabalacat, Pampanga for the following consecutive terms: 1995-
1998, 1998-2001 and 2001-2004. In relation to the 2004 elections,
Morales again ran as mayor of the same town, emerged as garnering
the majority votes and was proclaimed elective mayor for term
commencing July 1, 2004 to June 30, 2007. A petition for quo warranto
was later filed against Morales predicated on the ground that he is
ineligible to run for a “fourth” term, having served as mayor for three
consecutive terms. In his answer, Morales averred that his supposed
1998- 2001 term cannot be considered against him, for, although he
was proclaimed by the Mabalacat board of canvassers as elected
mayor vis-à-vis the 1998 elections and discharged the duties of mayor
until June 30, 2001, his proclamation was later nullified by the RTC of
Angeles City and his closest rival, Anthony Dee, proclaimed the duly
elected mayor. Pursuing his point, Morales parlayed the idea that he
only served as a mere caretaker.
The Court found Morales’ posture untenable and held that the
case of Morales presents a factual milieu similar with Ong, not with
Lonzanida. For nease of reference, the proclamation of Francis Ong, in
Ong, was nullified, but after he, like Morales, had served the three-year
term from the start to the end of the term. Hence, the Court concluded
that Morales exceeded the three-term limit rule, to wit: Here,
respondent Morales was elected for the term July 1, 1998 to June 30,
2001. He assumed the position. He served as mayor until June 30,
2001. He was mayor for the entire period notwithstanding the
Decision of the RTC in the electoral protest case filed by petitioner
Dee ousting him (respondent) as mayor. To reiterate, as held in Ong
v. Alegre, such circumstance does not constitute an interruption in
serving the full term.
Respondent Morales is now serving his fourth term. He has
been mayor of Mabalacat continuously without any break since July 1,
1995. In just over a month, by June 30, 2007, he will have been mayor
of Mabalacat for twelve (12) continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly
ousted, i.e., after the expiry of the term, cannot constitute an
interruption in Morales’ service of the full term; neither can Morales, as
he argued, be considered merely a “caretaker of the office” or a mere
“de facto officer” for purposes of applying the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections,
the Court would again find the same Mayor Morales as respondent in a
disqualification proceeding when he ran again as a mayoralty candidate
during the 2007 elections for a term ending June 30, 2010. Having been
unseated from his post by virtue of this Court’s ruling in Rivera, Morales
would argue this time around that the three-term limit rule was no
longer applicable as to his 2007 mayoralty bid. This time, the Court
ruled in his favor, holding that for purposes of the 2007 elections, the
three-term limit rule was no longer a disqualifying factor as against
Morales. The Court
wrote:
Our ruling in the Rivera case served as Morales’
involuntary severance from office with respect to the 2004-2007
term. Involuntary severance from office for any length of time short of
the full term provided by law amounts to an interruption of continuity of
service. Our decision in the Rivera case was promulgated on 9 May
2007 and was effective immediately. The next day, Morales notified the
vice mayor’s office of our decision. The vice mayor assumed the office
of the mayor from 17 May 2007 up to 30 June 2007. The assumption
by the vice mayor of the office of the mayor, no matter how short it
may seem to Dizon, interrupted Morales’ continuity of service.
Thus, Morales did not hold office for the full term of 1 July 2004 to 30
To summarize, hereunder are the prevailing
jurisprudence on issues affecting consecutiveness of
terms and/or involuntary interruption, viz:
1. When a permanent vacancy occurs in an elective
position and the official merely assumed the
position pursuant to the rules on succession under
the LGC, then his service for the unexpired portion
of the term of the replaced official cannot be treated
as one full term as contemplated under the subject
constitutional and statutory provision that service
cannot be counted in the application of any term
limit (Borja, Jr.). If the official runs again for the
same position he held prior to his assumption of the
higher office, then his succession to said position is
by operation of law and is considered an involuntary
severance or interruption (Montebon).
2. An elective official, who has served for three
consecutive terms and who did not seek the
elective position for what could be his fourth term,
but later won in a recall election, had an interruption
in the continuity of the official’s service. For, he had
become in the interim, i.e., from the end of the 3rd
term up to the recall election, a private citizen
(Adormeo and Socrates).
3. The abolition of an elective local office due to the
conversion of a municipality to a city does not, by
itself, work to interrupt the incumbent official’s
continuity of service (Latasa).
4. Preventive suspension is not a term-interrupting
event as the elective officer’s continued stay and
entitlement to the office remain unaffected during
the period of suspension, although he is barred
 from exercising the functions of his office during this
period (Aldovino, Jr.).
5. When a candidate is proclaimed as winner for an
elective position and assumes office, his term is
interrupted when he loses in an election protest and
is ousted from office, thus disenabling him from
serving what would otherwise be the unexpired
portion of his term of office had the protest been
dismissed (Lonzanida and Dizon). The break or
interruption need not be for a full term of three
years or for the major part of the 3-year term; an
interruption for any length of time, provided the
cause is involuntary, is sufficient to break the
continuity of service (Socrates, citing Lonzanida).
6. When an official is defeated in an election protest
and said decision becomes final after said official
had served the full term for said office, then his loss
in the election contest does not constitute an
interruption since he has managed to serve the
term from start to finish. His full service, despite the
defeat, should be counted in the application of term
limits because the nullification of his proclamation
came after the expiration of the term (Ong and
Rivera).
Abundo argues that the RTC and the COMELEC erred in
uniformly ruling that he had already served three consecutive terms and
is, thus, barred by the constitutional three-term limit rule to run for the
current 2010-2013 term. In gist, Abundo arguments run thusly:
1. Aldovino, Jr. is not on all fours with the present
case as the former dealt with preventive suspension
which does not interrupt the continuity of service of
a term;
2. Aldovino, Jr. recognizes that the term of an
elected official can be interrupted so as to remove
him from the reach of the constitutional three-term
limitation;
3. The COMELEC misinterpreted the meaning of
“term” in Aldovino, Jr. by its reliance on a mere
portion of the Decision and not on the unified logic
in the disquisition;
4. Of appropriate governance in this case is the
holding in Lonzanida and Rivera III v.
Commission on Elections
5. The COMELEC missed the point when it ruled
that there was no interruption in the service of
Abundo since what he considered as an
“interruption” of his 2004-2007 term occurred before
his term started; and
6. To rule that the term of the protestee (Torres)
whose proclamation was adjudged invalid was
interrupted while that of the protestant (Abundo)
who was eventually proclaimed winner was not so
interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the
ratio decidendi of Aldovino, Jr. finds application in the instant case. The
COMELEC ruled that Abundo did not lose title to the office as his
victory in the protest case confirmed his entitlement to said office and
he was only unable to temporarily discharge the functions of the office
during the pendency of the election protest. We note that this present
case of Abundo deals with the effects of an election protest, for which
the rulings in Lonzanida, Ong, Rivera and Dizon appear to be more
attuned than the case of Aldovino Jr., the interrupting neffects of the
imposition of a preventive suspension being the very lis mota in the
Aldovino, Jr. case. But just the same, We find that Abundo’s case
presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the
individuals subject of disqualification were candidates who lost in the
election protest and each declared loser during the elections, Abundo
was the winner during the election protest and was declared the
rightful holder of the mayoralty post. Unlike Mayor Lonzanida and
Mayor Morales, who were both unseated toward the end of their
respective terms, Abundo was the protestant who ousted his
opponent and had assumed the remainder of the term.
Notwithstanding, We still find this Court’s pronouncements in
the past as instructive, and consider several doctrines established from
the 1998 case of Borja, Jr. up to the most recent case of Aldovino Jr. in
2009, as potent aids in arriving at this Court’s conclusion. The intention
behind the three-term limit rule was not only to abrogate the
“monopolization of political power” and prevent elected officials from
breeding “proprietary interest in their position”60 but also to “enhance
the people’s freedom of choice.” In the words of Justice Vicente V.
Mendoza, “while people should be protected from the evils that a
monopoly of power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.”
In the present case, the Court finds Abundo’s case
meritorious and declares that the two-year period during which his
opponent, Torres, was serving as mayor should be considered as
an interruption, which effectively removed Abundo’s case from the
ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004
election for the term starting July 1, 2004 to June 30, 2007, was the
duly elected mayor. Otherwise how explain his victory in his election
protest against Torres and his consequent proclamation as duly elected
mayor. Accordingly, the first requisite for the application of the
disqualification rule based on the three-term limit that the official has
been elected is satisfied.
This thus brings us to the second requisite of whether or not
Abundo had served for “three consecutive terms,” as the phrase is
juridically understood, as mayor of Viga, Catanduanes immediately
before the 2010 national and local elections. Subsumed to this issue is
of course the question of whether or not there was an effective
involuntary interruption during the three three-year periods, resulting in
the disruption of the continuity of Abundo’s mayoralty.
The facts of the case clearly point to an involuntary
interruption during the July 2004-June 2007 term. There can be no
quibbling that, during the term 2004-2007, and with the enforcement of
the decision of the election protest in his favor, Abundo assumed the
mayoralty post only on May 9, 2006 and served the term until June 30,
2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera,
it cannot be said that Mayor Abundo was able to serve fully the entire
2004- 2007 term to which he was otherwise entitled. A “term,” as
defined in Appari v. Court of Appeals, means, in a legal sense, “a fixed
and definite period of time which the law describes that an officer may
hold an office.” It also means the “time during which the officer may
claim to hold office as a matter of right, and fixes the interval after which
the several incumbents shall succeed one another.” It is the period of
time during which a duly elected official has title to and can serve the
functions of an elective office. From paragraph (a) of Sec. 43, RA
7160,66 the term for local elected officials is three (3) years starting
from noon of June 30 of the first year of said term.
In the present case, during the period of one year and ten
months, or from June 30, 2004 until May 8, 2006, Abundo cannot
plausibly claim, even if he wanted to, that he could hold office of
the mayor as a matter of right. Neither can he assert title to the
same nor serve the functions of the said elective office. The reason
is simple: during that period, title to hold such office and the
corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually
held the office and exercised the functions as mayor only upon his
declaration, following the resolution of the protest, as duly elected
candidate in the May 2004 elections or for only a little over one year
and one month. Consequently, since the legally contemplated full term
for local elected officials is three (3) years, it cannot be said that
Abundo fully served the term 2004-2007. The reality on the ground is
that Abundo actually served less.
Needless to stress, the almost two-year period during which
Abundo’s opponent actually served as Mayor is and ought to be
considered an involuntary interruption of Abundo’s continuity of service.
An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of
counting the three-term threshold. The notion of full service of three
consecutive terms is related to the concepts of interruption of
service and voluntary renunciation of service. The word
interruption means temporary cessation, intermission or suspension.
To interrupt is to obstruct, thwart or prevent. When the Constitution and
the LGC of 1991 speak of interruption, the reference is to the
obstruction to the continuance of the service by the concerned elected
official by effectively cutting short the service of a term or giving a hiatus
in the occupation of the elective office. On the other hand, the word
“renunciation” connotes the idea of waiver or abandonment of a known
right. To renounce is to give up, abandon, decline or resign. Voluntary
renunciation of the office by an elective local official would thus mean to
give up or abandon the title to the office and to cut short the service of
the term the concerned elected official is entitled to.
It must be stressed that involuntary interruption of service
which jurisprudence deems an exception to the three-term limit rule,
implies that the service of the term has begun before it was
interrupted. Here, the respondent did not lose title to the office. As the
assailed Resolution
states:
In the case at bar, respondent
cannot be said to have lost his title to the
office. On the contrary, he actively sought
entitlement to the office when he lodged
the election protest case. And
respondent-appellant’s victory in the said
case is a final confirmation that he was
validly elected for the mayoralty post of
Viga, Catanduanes in 2004- 2007. At
most, respondent-appellant was only
unable to temporarily discharge the
functions of the office to which he was
validly elected during the pendency of
the election protest, but he never lost title
to the said office.
The COMELEC’s Second Division, on the other hand,
pronounced that the actual length of service by the public official in a
given term is immaterial by reckoning said service for the term in the
application of the three-term limit rule, thus: As emphasized in the case
of Aldovino, “this formulation—no more than three consecutive terms—
is a clear command suggesting the existence of an inflexible rule.”
Therefore we cannot subscribe to the argument that since respondent
Abundo served only a portion of the term, his 2004-2007 “term” should
not be considered for purposes of the application of the three term limit
rule. When the framers of the Constitution drafted and incorporated the
three term limit rule, it is clear that reference is to the term, not the
actual length of the service the public official may render. Therefore,
one’s actual service of term no matter how long or how short is
immaterial.
In fine, the COMELEC ruled against Abundo on the theory
that the length of the actual service of the term is immaterial in his case
as he was only temporarily unable to discharge his functions as mayor.
The COMELEC’s case disposition and its heavy reliance on Aldovino,
Jr. do not commend themselves for concurrence. The Court cannot
simply find its way clear to understand the poll body’s determination
that Abundo was only temporarily unable to discharge his functions as
mayor during the pendency of the election protest.
As previously stated, the declaration of being the winner in an
election protest grants the local elected official the right to serve the
unexpired portion of the term. Verily, while he was declared winner in
the protest for the mayoralty seat for the 2004-2007 term, Abundo’s full
term has been substantially reduced by the actual service rendered by
his opponent (Torres). Hence, there was actual involuntary interruption
in the term of Abundo and he cannot be considered to have served the
full 2004-2007 term. This is what happened in the instant case. It
cannot be overemphasized that pending the favorable resolution of his
election protest, Abundo was relegated to being an ordinary
constituent since his opponent, as presumptive victor in the 2004
elections, was occupying the mayoralty seat. In other words, for almost
two years or from July 1, 2004— the start of the term—until May 9,
2006 or during which his opponent actually assumed the mayoralty
office, Abundo was a private citizen warming his heels while
awaiting the outcome of his protest. Hence, even if declared later as
having the right to serve the elective position from July 1, 2004, such
declaration would not erase the fact that prior to the finality of the
election protest, Abundo did not serve in the mayor’s office and, in fact,
had no legal right to said position. Aldovino Jr. cannot possibly lend
support to respondent’s cause of action, or to COMELEC’s resolution
against Abundo. In Aldovino Jr., the Court succinctly defines what
temporary inability or disqualification to exercise the functions of an
elective office means, thus: On the other hand, temporary inability or
disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a term
because it does not involve the loss of title to office or at least an
effective break from holding office; the office holder, while retaining
title, is simply barred from exercising the functions of his office for a
reason provided by law. We rule that the above pronouncement on
preventive suspension does not apply to the instant case. Verily, it
is erroneous to say that Abundo merely was temporarily unable or
disqualified to exercise the functions of an elective post. For one, during
the intervening period of almost two years, reckoned from the start of
the 2004-2007 term, Abundo cannot be said to have retained title to
the mayoralty office as he was at that time not the duly proclaimed
winner who would have the legal right to assume and serve such
elective office. For another, not having been declared winner yet,
Abundo cannot be said to have lost title to the office since one
cannot plausibly lose a title which, in the first place, he did not
have. Thus, for all intents and purposes, even if the belated declaration
in the election protest accords him title to the elective office from the
start of the term, Abundo was not entitled to the elective office until the
election protest was finally resolved in his favor.
Consequently, there was a hiatus of almost two years,
consisting of a break and effective interruption of his service, until he
assumed the office and served barely over a year of the remaining
term. At this juncture, We observe the apparent similarities of Mayor
Abundo’s case with the cases of Mayor Talaga in Adormeo and Mayor
Hagedorn in Socrates as Mayors Talaga and Hagedorn were not
proclaimed winners since they were noncandidates in the regular
elections. They were proclaimed winners during the recall elections and
clearly were not able to fully serve the terms of the deposed incumbent
officials. Similar to their cases where the Court deemed their terms as
involuntarily interrupted, Abundo also became or was a private citizen
during the period over which his opponent was serving as mayor. If in
Lonzanida, the Court ruled that there was interruption in Lonzanida’s
service because of his subsequent defeat in the election protest, then
with more reason, Abundo’s term for 2004-2007 should be declared
interrupted since he was not proclaimed winner after the 2004 elections
and was able to assume the office and serve only for a little more than
a year after winning the protest.
As aptly stated in Latasa, to be considered as interruption of
service, the “law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular
local government unit.” Applying the said principle in the present case,
there is no question that during the pendency of the election protest,
Abundo ceased from exercising power or authority over the good
people of Viga, Catanduanes. Consequently, the period during which
Abundo was not serving as mayor should be considered as a rest
period or break in his service because, as earlier stated, prior to the
judgment in the election protest, it was Abundo’s opponent, Torres, who
was exercising such powers by virtue of the still then valid
proclamation.
As a final note, We reiterate that Abundo’s case differs from
other cases involving the effects of an election protest because while
Abundo was, in the final reckoning, the winning candidate, he was the
one deprived of his right and opportunity to serve his
constituents. To a certain extent, Abundo was a victim of an imperfect
election system. While admittedly the Court does not possess the
mandate to remedy such imperfections, the Constitution has clothed it
with enough authority to establish a fortress against the injustices it may
bring.
In this regard, We find that a contrary ruling would work
damage and cause grave injustice to Abundo––an elected official
who was belatedly declared as the winner and assumed office for only
a short period of the term. If in the cases of Lonzanida and Dizon, this
Court ruled in favor of a losing candidate––or the person who was
adjudged not legally entitled to hold the contested public office but held
it anyway––We find more reason to rule in favor of a winning candidate-
protestant who, by popular vote, deserves title to the public office but
whose opportunity to hold the same was halted by an invalid
proclamation.
Also, more than the injustice that may be committed against
Abundo is the injustice that may likewise be committed against the
people of Viga, Catanduanes by depriving them of their right to choose
their leaders. Like the framers of the Constitution, We bear in mind that
We “cannot arrogate unto ourselves the right to decide what the people
want” and hence, should, as much as possible, “allow the people to
exercise their own sense of proportion and rely on their own strength to
curtail the power when it overreaches itself.” For democracy draws
strength from the choice the people make which is the same choice We
are likewise bound to protect.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for
the position of Mayor of Viga, Catanduanes to which he was duly
elected in the May 2010 elections and is accordingly ordered
IMMEDIATELY REINSTATED to said position.
CASE 4
EN BANC
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the
present and duly-appointed Presidential Adviser on the Peace Process
(OPAPP) or the so-called Office of the Presidential Adviser on the
Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON.
CELSO L. LOBREGAT, City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, Rep. MA. ISABELLE G.
CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2,
City of Zamboanga, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by RODOLFO
C. GARCIA, LEAH ARMAMENTO, SEDFREY CANDELARIA, MARK
RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as
the Presidential Adviser on Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE
LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY.
SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN.
HERMOGENES ESPERON, JR., in his capacity as the present and
duly appointed Presidential Adviser on the Peace Process; and/or SEC.
EDUARDO ERMITA, in his capacity as Executive Secretary.
respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as
represented by HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS, in his capacity as Vice-
Governor and Presiding Officer of the Sangguniang Panlalawigan,
HON. CECILIA JALOSJOS CARREON, Congresswoman, 1st
Congressional District, HON. CESAR G. JALOSJOS, Congressman,
3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON.
SETH FREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON,
JR., HON. ULDARICO M. MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO,
HON. FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING, HON. ANECITO S.
DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA
E. TORRINO, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in his
capacity as the Presidential Adviser of Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its Chairman
MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-
intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-in-intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T.
MANGUDADATU, in his capacity as Provincial Governor and a resident
of the Province of Sultan Kudarat, petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF, petitioner-
in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens and
residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),
respondent-in-intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
CASE 17
G.R. No. 183591 PROVINCE OF NORTH COTABATO v.
THE GOVERNMENT OF THE PHILIPPINES
Summarized by Manu and Kim
This is a consolidation of a number of cases regarding the issues,
mostly in relation to its constitutionality, surrounding the Memorandum
of Agreement on the Ancestral Domain (MOA-AD) between the
Government of the Philippines (GPR) and the Moro Islamic Liberation
Front (MILF)[1] and the issue regarding the extent of the powers of the
President in pursuing the peace process. The following are the cases
that have been consolidated:
· G.R. 183591 – (23 July 2008) the Province of North Cotabato
and Vice Governor Emmanuel Piñol (Mandamus and Prohibition
with Prayer for the Issuance of Writ of Preliminary Injunction and
TRO) sought to compel respondents to disclose the MOA-AD and
attachments, prohibit the signing, hold a public consultation and
declare the MOA-AD UNCONSTITUTIONAL
· G.R. 183752 – the City of Zamboanga (Mandamus and
Prohibition and similar injunctive reliefs) prayed that Zamboanga
City be excluded from the Bangsamoro Homeland and/or
Bangasmoro Judicial Entity (BJE) and that the MOA-AD be
declared null and void
· G.R. 183893 – City of Iligan (Injunction and Declaratory
Relief) sought to enjoin respondents from signing the MOA-AD and
if it has been signed, from implementing it. Additionally impleaded
ES Eduardo Ermita as respondent.
· G.R. 183951 - the Province of Zamboanga del Norte et al
(petition for Certiorari, Mandamus and Prohibition), prayed to
declare null and void the MOA-AD and without operative effect and
those respondents enjoined from executing the MOA-AD
· G.R. 183962 – Maceda, Binay, Pimentel III filed a petition for
Prohibition, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the
MOA-AD as well as to nullify the MOA-AD for being
unconstitutional and illegal. Additionally impleaded as responded
the MILF Peace Negotiating Panel (represented by Chairman
Iqbal.
· Various parties moved to intervene and were granted to file
their petitions/comments in-intervention.
Important People:
· Aforementioned petitioners and respondents
· Hermogenes Esperon Presidential Adviser on the Peace
Process (PAPP)
· GRP Peace Panel on Ancestral Domain
FACTS (In order of chronological events) AND AN OVERVIEW OF
THE MOA-AD
&
1. 1996 – the beginning of the long process of GRP-MILF peace
negotiations
2. 18 July 1997 – the GRP and the peace panel signed the
Agreement on the General Cessation of Hostilities
3. 27 August 1998 – signed the General Framework of
Agreement of Intent
4. 1999 to early 2000 – numerous municipalities in Central
Mindanao were attacked by the MILF which affected the
peace negotiations; MILF took control of the town hall in
Kauswagan, Lanao del Norte in March 2000 and in response,
then President Estrada declared an “all-out-war” against the
MILF
5. 2001 – President GMA assumed office and suspended the
military offense against the MILF and sought a resumption of
the peace negotiations; MILF was first apprehensive but were
convinced when GMA asked the Government of Malaysia
through Prime Minister Mahathir Mohammad to help convince
them, the MILF convened its Central Committee seriously to
discuss the matter and eventually met with the GRP
6. 28 February 2001 – GRP Negotiating Panel was established
through Executive Order No. 3 s. 2001
7. 24 March 2001 – parties met in Kuala Lumpur with talks
facilitated by the Malaysian Government; parties signed the
Agreement on the General Framework and the Resumption of
Peace Talks. The MILF thereafter suspended all its military
actions.
8. 20-22 June 2001 – formal peace talks held in Tripoli, Libya
the outcome of which was the GRP-MILF Tripoli Agreement
on Peace Process which contained the following basic
principles and agenda on the negotiations: security aspect,
rehabilitation aspect, and ancestral domain aspect (this
aspect had a colatilla saying that it “shall be discussed further
by the Parties in their next meeting”)
9. 5-7 August 2001 – second round of peace talks in Cyberjaya,
Malaysia which ended in the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement
2001 which led to a ceasefire between parties
10. 7 May 2002 – signed the Implementing Guidelines on the
Humanitarian Rehabilitation and Development Aspects of the
Tripoli Agreement 2001
11. 13 July 2003 – Chairman Salamat Hashim of the MILF
passed away and subsequently replaced by Al Haj Murad
(previously chair peace negotiator). His position was taken
over by Mohagher Iqbal.
12. 2005 – exploratory talks between parties in Malaysia, to draft
OVERVIEW OF THE MOA-AD
the MOA-AD
13. 23 July 2008 – the Province of North Cotabato file with the
Supreme Court and was docketed as G.R. 183591
14. 04 August 2008 – the Court issued a Temporary Restraining
Order (TRO) commanding and directing respondents and
agents to cease and desist from formally signing the MOA-
AD. Court also required SolGen to submit to the court and
petitioners the official copy of the MOA-AD
15. 05 August 2008 – scheduled signing date for the final form of
Memorandum of Agreement on the Ancestral Domain Aspect
of the Tripoli Agreement on Peace (MOA-AD)
16. 15, 22, 29 August 2008 – cases were heard on oral
argument with the following issues discussed:
a. Whether the petitions have become moot and academic
i. Insofar as mandamus is concerned in
view of the disclosure of the official copies of the MOA-AD
ii. Insofar as prohibition aspect is concerned
if consultation has become fait accompli with the finalization
of the draft
b. Whether the constitutionality and legality of the MOA is
ripe for adjudication;
c. Whether respondent committed grave abuse of
discretion amounting to excess or lack of jurisdiction when it
negotiated and initiated the MOA vis-à-vis ISSUES (d) and (e)
d. Whether there is a violation of the people’s right to
information. If yes, whether prohibition is an appropriate
remedy
e. Whether by signing the MOA the GRP would be binding
itself to
i. Create and recognize the BJE as a separate
state/ juridical, territorial, political subdivision
not recognized by law
ii. Revise or amend the constitution and existing
laws to conform to the MOA-AD
iii. Concede/ recognize claim of MILF for
ancestral domain in violation of IPRA
If yes, whether the Executive Branch has the
authority to bind the GRP
f. Whether the inclusion of North Cotabato, Zamboanga
City, Iligan and Isabela and Linamon, Lanao del Norte in the
Bangsamoro Homeland is a justiciable question
g. Whether not signing the MOA derogates any valid prior
commitment of the GRP
17. 19 August 2008 - Maceda, Binay, Pimentel III filed with the
SC
18. 19 August 2008 – Respondents (through Manifestation by
Motion) stated that the Executive Department shall thoroughly
review the MOA-AD and pursue further negotiations to
address the issues raised and thus moved to dismiss the
cases
· Parties: GRP (used interchangeably with CENTRAL
GOVERNMENT) and the MILF
· Main body is divided into four (4) strands: CONCEPTS AND
PRINCIPLES, TERRITORY, RESOURCES, AND GOVERNANCE
· CONCEPTS AND PRINCIPLES
o Defines Bangsamoro People as natives or original inhabitants
of Mindanao and adjacent islands (including Palawan and
Sulu archipelago) at the time of conquest/ colonization and
their descendants and spouses
o Not only Moros but included indigenous peoples of Mindanao
and adjacent islands (adds that the freedom of choice of the
IPs shall be respected)
o MOA-AD proceeds to refer to the “Bangsamoro Homeland” –
the ownership of which is vested exclusively in the
Bangsamoro people by virtue of their prior rights of
occupation; both parties acknowledge that ancestral domain
does not form part of the public domain.
o Bangsamoro people have a right to self-governance
o Describes Bangsamoro as the “First Nation” – suggests
exclusive entitlement to that designation (departs from
Canadian usage – used to refer to their indigenous
collectively as First Nations – plural)
· TERRITORY
o Land mass, maritime, terrestrial, fluvial, alluvial including aerial
domain and atmospheric space embracing Mindanao- Sulu-
Palawan geographic region
o Present geographic area of ARMM including certain
Municipalities in Lanao del Norte voted for in the 2001
plebiscite
o Outside this, the BJE is to cover other provinces and
municipalities grouped into Category A (to be subjected to
plebiscite not later than 12 months after MOA-AD signing)
and B [subjected to a plebiscite twenty-five (25) years from
the signing of a separate agreement – the Comprehensive
Compact]
o BJE shall have jurisdiction (did not say joint with GRP) over all
natural resources within its internal waters (15km from
coastline) and territorial waters from beyond this up to
baselines of RP – South East and South West of mainland
Mindanao; within territorial waters, there is joint jurisdiction
with GRP
o Indicates sharing of minerals on the territorial waters in favor
of BJE. Nothing said about sharing the minerals in the internal
waters
· RESOURCES
o BJE is free to enter into any economic cooperation/ trade
relations with foreign countries and can establish foreign
trade missions to other countries
o External defense remain the duty and obligation of GRP
o GRP should take steps to include BJE in international meetings
and events such as but not limited to ASEAN events
o Exploring, producing, obtaining potential sources of energy
jurisdiction and control is under the BJE but in times of
national emergency, when public interest requires, the GRP
may, for a fixed period and reasonable terms agreed by both
parties, assume or direct the operation of such resources
o The sharing between the GRP and the BJE of total production
pertaining to natural resources is 75:25 in favor of BJE.
o BJE may modify or cancel forest concessions, timber licenses,
mining concessions, Mineral Production and Sharing
Agreements (MPSA) Industrial Forest Management
Agreements (IFMA) and the like, granted by the GRP,
including those issued by the present ARMM.
· GOVERNANCE
o Binds parties to invite a multinational third-party to observe and
monitor implementation of COMPREHENSIVE COMPACT –
a compact to embody the “details for effective enforcement”
and “mechanisms and modalities of actual implementation” of
the MOA-AD but explicitly says that the participation of the
third party shall not in any way affect the relationship of the
GRP and BJE
o Defines relationship of Central Government and BJE as
“associative” [take note of this as this will be an issue tackled
later on] characterized by shared authority and responsibility
o Provides that provisions requiring “amendments to the existing
legal framework” shall take effect upon signing of the
comprehensive compact and upon effecting the aforesaid
amendments with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be
indicated in the comprehensive compact [take note as the
legality of this provision is one of the main points of the
controversy – violates Constitution]
o BJE can build, develop, maintain own institutions (banking,
education, legislation, judiciary etc.) details will be discussed
in the negotiation of the comprehensive compact
· Annexed to the MOA-AD are documents containing the lists
and maps of the places included under Categories A and B
mentioned under TERRITORY
ISSUES AND HOLDING:
I. WHETHER OR NOT PETITIONS HAVE COMPLIED
WITH THE PROCEDURAL REQUIREMENTS FOR THE
EXERCISE OF JUDICIAL REVIEW
a. RIPENESS – COURT RULES THAT IT IS RIPE.[2]
· Petitions allege acts or omissions by respondents exceed their
authority by violating their duty under EO No. 3, the
Constitution and statutes. There is a prima facie case for
Certiorari, Prohibition, and Mandamus and thus an actual
case for controversy ripe for adjudication exists. When an act
of a branch of government is seriously alleged to have
infringed the Constitution, it becomes not only the right
but duty of the judiciary to settle the dispute.
· Concrete acts not necessary; cites Pimentel, Jr. v. Aguirre:
“…mere enactment of the questioned law/ approval of the
challenged action the dispute is said to have ripened into
judicial controversy even without any overt act. Indeed even a
singular violation of the Constitution and/or the law is enough
to awaken judicial duty.” Also cites Santa Fe Independent
School District v. Doe: US SC held that challenge for the
constitutionality of the school’s policy on student-led prayers/
speeches before games was ripe even without it happening
because it is the policy being challenged, not the concrete
acts per se
· When law or act in question is not yet effective does not negate
ripeness; cites New York v. United States: action of New
York challenging a radioactive waste policy was ripe in order
to avoid the provision’s consequences
b. LOCUS STANDI
· Province of North Cotabato, Province of Zamboanga del Norte,
City of Iligan, City of Zamboanga and petitioners-in-
intervention Province of Sultan Kudarat, City of Isabela and
Municipality of Linamon have locus standi in view of the
direct and substantial injury that they as LGUs would
suffer as their territories are to be included in the
intended domain of the BJE
· Petitioners allege that they did not vote for their inclusion
· Maceda, Binay, Pimentel III would have no standing for their failure
to specify that they would have rights that will be denied or
that there is a wastage of public funds BUT court grants them
standing due to their invocation of the transcendental
importance of the issue
· Intervenors Drilon and Tamayo can be given standing in their claim
as tax payers and that government funds will be used to
conduct an illegal and unconstitutional plebiscite;
 transcendental importance argument also gives them
standing
· Intervenor Mar Roxas has standing as his premise is that he is a
member of the Senate and a citizen (public’s right to be
informed on the MOA-AD) and has genuine legal interest in
the matter in litigation (personally, we no idea why the last
one gives him standing)
· Intervenors Lopez, Ridao, Gomez, and Buxani failed to allege any
proper legal interest in the present petitions
· Muslim Multi-Sectoral Movement for Peace and Development and
Muslim Legal Assistance Foundation may be prejudiced and
therefore they have standing
c. MOOTNESS
· COURT RULES THAT PETITIONS ARE NOT MOOTED[3]
1. Non-signing and eventual dissolution of the GRP Peace Panel
did not moot the petitions. It bears emphasis that the signing
did not push through due to the TRO issued by this Court
2. Cannot be mere consensus points given the nomenclature and
need to have it initialed by involved parties + far reaching
constitutional implications
3. As discussed, there is a commitment to change statutes and
possibly amend the constitution in order to conform to the
MOA-AD; consequently, present petitions are not confined to
the terms and provisions of the MOA-AD but to other on-
going and future negotiations and agreements necessary for
its realization
4. It is of paramount public interest.
II. WHETHER OR NOT RESPONDENTS HAVE VIOLATED
CONSTITUTIONAL AND STATUTORY PROVISIONS ON
PUBLIC CONSULTATION AND THE RIGHT TO
INFORMATION WHEN THEY NEGOTIATED THE MOA-AD
a. Constitutional right to information on matters of public
concern as provided in Section 7, Article III Bill of Rights
as is complimented by Section 28[4], Article II,
Declaration of Principles and State Policies (“splendid
symmetry” in the words of Commissioner Blas Ople)
· It is a self-executory constitutional right (Legazpi v. Civil
Service Commission)
· There can be no realistic perception and participation by the
public of the nation’s problems nor meaningful democratic
decision-making if the public is denied access of information
of general interest (Baldoza v. Judge Dimaano)
· The MOA-AD is a matter of public concern, and matters of
public concern covered by the right to information
contemplates inclusion of steps and negotiations leading to
the consummation of the contract/ transaction (Chavez v.
PEA)
· Effectivity of the policy of public disclosure need not wait for a
passing of a statute. Respondents cannot point to the
absence of an implementing legislation as an excuse in not
effecting such policy (merely provided for “reasonable
safeguards” in the implementation but not a necessity for the
policy to be in effect)
b. Three pertinent laws [EO No. 3, Republic Act No. 7160
(Local Government Code), and Republic Act No. 8371
(IPRA)] animate petitioner’s right to be consulted on the
peace agenda corollary to the constitutional right to
information and disclosure.
· E.O. No. 3
1. In the perambulatory clauses (the first WHEREAS clauses in the
EO) it is stated that there is a need to enhance contribution of
CSOs by institutionalizing people’s participation
2. Enumerates responsibilities of the PAPP such as conducting
regular dialogues with the National Peace Forum and other
peace partners
· Local Government Code
1. Requires all national offices to conduct consultations before any
project or program critical to environment and human ecology
which the MOA-AD falls under as it vests ownership of a vast
territory to the Bangsamoro people which could result to the
diaspora of a great number of inhabitants from the said
environment
· IPRA
1. Entails the observance of prior informed consent of the
indigenous cultural communities (ICCs) and indigenous
peoples (IPs) (under IPRA)
· PAPP committed grave abuse of discretion
1. No consultation/ lack of information – cannot invoke “executive
privilege” doctrine[5] since copies of the MOA-AD were given
upon request of the Court anyway
2. Lacked prior consent/ informing of ICCs and indigenous peoples
IPs (under IPRA)
3. MOA AD recognition of ancestral domains seems to delineate
ancestral domains which IPRA does not grant the Executive
Department thus respondents clearly transcended the
boundaries of their authority
III. WHETHER OR NOT THE CONTENTS OF THE MOA-AD
ARE IN VIOLATION OF THE CONSTITUTION AND
STATUTES
a. MOA-AD is inconsistent with the Constitution and Laws as
presently worded.
· Powers of BJE exceed those granted to any LGU under present
laws
· The international law concept of association is discussed in length
as it is envisioned to be the relationship between the BJE and
the Central Government[6]
· Quotes Keitner and Reisman (authors of Free Association: The
United States Experience): [a]n association is formed when
two states of unequal power voluntary establish durable
links. In the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal while
maintaining its international status as a state. Free
associations represent a middle ground between integration
 and independence. xxx (Emphasis and underscoring
supplied)
· Free association is understood as an international association
between sovereigns
· The MOA-AD contains many provisions which are consistent
with the international legal concept of association[7]
1. BJE’s capacity to enter into economic and trade relations with
foreign countries
2. Commitment of the Central Government to ensure participation
of BJE in ASEAN events and UN agencies
3. BJE’s right to participate in Philippine official missions bearing
on negotiation of border agreements
4. Sharing of revenues
5. These resemble rights of governments of the Federated States
of Micronesia (an example of an associated state in the US)
· Concept of ASSOCIATION is not recognized in our
Constitution
1. No province, city or municipality has an “associative”
relationship with the national government
2. Court says: “even the mere concept of animating many of the
MOA-AD’s provisions already require for the amendment of
constitutional provisions, such as in Article X[8]”
· It violates of a number of articles in the Constitution
1. Article X, Section 20 (defines the powers of autonomous
regions)
Section 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic
act of autonomous regions shall provide for legislative powers
over:
(1) Administrative organization;
(2) Creation of sources of revenues;
xxx
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
2. It is only the President who has the power to enter into
treaties[9] however, paragraph 3 under RESOURCES in the
MOA-AD states that “the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries: provided however that such relationships and
understandings do not include aggression against the
Government of the Republic of the Philippines x x x”
3. Article II, Section 22 of the Constitution must also be amended
to effect the scheme envisioned in the MOA-AD.
“The State recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and
development”
Court says that because of the associative ties between the BJE and
the national government, the act of placing a portion of
Philippine territory in a status which in international practice
has generally been a preparation for independence, is
certainly not conducive to national unity.
· MOA-AD is also not in consonance with a number of statutes.
1. Article X Section 3 of the Organic Act of the ARMM is a bar to
the adoption of the definition of “Bangsamoro people” used in
the MOA
MOA-AD lumps together the identities of the Bangsamoro with the
other indigenous peoples living in Mindanao (the Organic Act
of the ARMM distinguishes between Bangsa Moro people and
Tribal peoples)
2. Chapter VII Section 52 of the IPRA lays down a detailed
procedure in the delineation and recognition of ancestral
domains which is not what is in the MOA-AD
MOA-AD simply states in Paragraph 1 TERRITORY, “[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime x x x embracing the Mindanao-
Sulu-Palawan geographic region.”
· The “suspensive clause” in the MOA-AD is
UNCONSTITUTIONAL.
1. Paragraph 7 in GOVERNANCE section of the MOA-AD states:
“7. Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to
enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon effecting the
necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.”
2. Court opines that this stipulation does not bear a mark of a
“suspensive” condition – defined in civil law as a future and
 uncertain event – but of a term. It is not a question of
whether the necessary changes to the legal framework
will be effected but WHEN. There is no uncertainty, thus
pursuant to this, it is mandatory for the GRP to effect the
changes to the legal framework.
This is inconsistent with the limits of the President’s authority to
propose constitutional amendments, it being a virtual
guarantee that the Constitution and other laws will
certainly be adjusted to conform to the MOA-AD.
3. Upholding such would be authorizing a usurpation of the
constituent powers vested only in Congress, a Constitutional
Convention or the people themselves through initiative
because the only way that the Executive can guarantee these
amendments is through undue influence and interference with
the legislative process. Thus, it should be struck down as
UNCONSTITUTIONAL.
VERDICT:
1. Respondent’s motion to dismiss is DENIED. Main and
intervening petitions are GRANTED.
2. The Memorandum of Agreement on the Ancestral Domain
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared CONTRARY TO LAW AND THE CONSTITUTION.
LAWS CITED:
Executive Order No. 3 Defining Policy and Administrative Structure for
Government’s Comprehensive Peace Efforts
The 1987 Philippine Constitution
Indigenous People’s Rights Act (IPRA) (R.A. 8371)
Local Government Code (R.A. 7160)
[1] A rebel group established in March 1984 when it splintered, under
the leadership of the late Salamat Hashim from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari. It separated on
the ground of what Salamat perceived to be a manipulation of the
MNLF away from an Islamic basis towards Marxist-Maoist orientations.
[2] SOLGEN SAYS: NO JUSTICIABLE CONTROVERSY THAT IS
RIPE
1. Unsigned MOA AD is just a list of consensus points for further
negotiations
2. Remains to be a proposal that does not create legally
demandable rights until the list of operative acts have been
complied with
3. He cites the provision on the need for plebiscites (with regard
to the additional areas in Annex A and B
4. He also cites that the COMPREHENSIVE CONTRACT is yet
to be drafted (with a deadline within 15 months from signing of
the MOA-AD)
5. Law or act in question is not yet effective does not negate
ripeness
6. Present petitions allege that respondents GRP Panel and
PAPP Esperon drafted MOA-AD without consulting LGUs
affected is a departure from their mandate under E.O. No. 3
[3] Moot and academic argument not applicable if:
a. There is grave violation of constitution
b. Situation is of exceptional character and paramount
public interest is involved
c. Constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar and the
public
d. Case is capable of repetition yet evading review
[4] “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.”
[5] This doctrine means the non-disclosure of sensitive information by
the Executive, as regards, for example, national security
[6] “4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative
institutions…”
[7] Such as the BJE’s capacity to enter into economic and trade
relations with foreign countries, the commitment of the Central
Government to ensure the BJE’s participation in meetings and events in
the ASEAN and the specialized UN agencies, and the continuing
responsibility of the Centre
[8] SECTION 1. The territorial and political subdivisions of the Republic
of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao xxx within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic
of the Philippines.
[9] Pimentel v. Executive Secretary instructs:
In our system of government, the President, being the head of
state is regarded as the sole organ and authority in external
relations and is the country’s sole representative with foreign
nations. As the chief architect x x x the President is vested with
authority to deal with foreign states and governments x x x In
the realm of treaty-making, the President has the sole
authority to negotiate with other states.
G.R. No. 91649 May 14, 1991
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES
MARANAN AND LORENZO SANCHEZ, petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION
(PAGCOR), respondent.
PARAS, J.:p
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant
petition seeking to annul the Philippine Amusement and Gaming
Corporation (PAGCOR) Charter — PD 1869, because it is allegedly
contrary to morals, public policy and order, and because —
A. It constitutes a waiver of a right prejudicial to a third person
with a right recognized by law. It waived the Manila City government's
right to impose taxes and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding
paragraph, the law has intruded into the local government's right to
impose local taxes and license fees. This, in contravention of the
constitutionally enshrined principle of local autonomy;
C. It violates the equal protection clause of the constitution in
that it legalizes PAGCOR — conducted gambling, while most other
forms of gambling are outlawed, together with prostitution, drug
trafficking and other vices;
D. It violates the avowed trend of the Cory government away
from monopolistic and crony economy, and toward free enterprise and
privatization. (p. 2, Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869
is contrary to the declared national policy of the "new restored
democracy" and the people's will as expressed in the 1987 Constitution.
The decree is said to have a "gambling objective" and therefore is
contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and
Section 3 (2) of Article XIV, of the present Constitution (p. 3, Second
Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing
lawyers (petitioner Basco being also the Chairman of the Committee on
Laws of the City Council of Manila), can question and seek the
annulment of PD 1869 on the alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was
created by virtue of P.D. 1067-A dated January 1, 1977 and was
granted a franchise under P.D. 1067-B also dated January 1, 1977 "to
establish, operate and maintain gambling casinos on land or water
within the territorial jurisdiction of the Philippines." Its operation was
originally conducted in the well known floating casino "Philippine
Tourist." The operation was considered a success for it proved to be a
potential source of revenue to fund infrastructure and socio-economic
projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to
fully attain this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D.
1869 to enable the Government to regulate and centralize all games of
chance authorized by existing franchise or permitted by law, under the
following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy
of the State to centralize and integrate all games of chance not
heretofore authorized by existing franchises or permitted by law in order
to attain the following objectives:
(a) To centralize and integrate the right and authority to operate
and conduct games of chance into one corporate entity to be controlled,
administered and supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement
and recreation, including sports gaming pools, (basketball, football,
lotteries, etc.) and such other forms of amusement and recreation
including games of chance, which may be allowed by law within the
territorial jurisdiction of the Philippines and which will: (1) generate
sources of additional revenue to fund infrastructure and socio-civic
projects, such as flood control programs, beautification, sewerage and
sewage projects, Tulungan ng Bayan Centers, Nutritional Programs,
Population Control and such other essential public services; (2) create
recreation and integrated facilities which will expand and improve the
country's existing tourist attractions; and (3) minimize, if not totally
eradicate, all the evils, malpractices and corruptions that are normally
prevalent on the conduct and operation of gambling clubs and casinos
without direct government involvement. (Section 1, P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all
over the Philippines. Under its Charter's repealing clause, all laws,
decrees, executive orders, rules and regulations, inconsistent therewith,
are accordingly repealed, amended or modified.
It is reported that PAGCOR is the third largest source of government
revenue, next to the Bureau of Internal Revenue and the Bureau of
Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly
remitted to the National Government a total of P2.5 Billion in form of
franchise tax, government's income share, the President's Social Fund
and Host Cities' share. In addition, PAGCOR sponsored other socio-
cultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and
organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2
Billion. As of December 31, 1989, PAGCOR was employing 4,494
employees in its nine (9) casinos nationwide, directly supporting the
livelihood of Four Thousand Four Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They
allege that the same is "null and void" for being "contrary to morals,
public policy and public order," monopolistic and tends toward "crony
economy", and is violative of the equal protection clause and local
autonomy as well as for running counter to the state policies enunciated
in Sections 11 (Personal Dignity and Human Rights), 12 (Family) and
13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987
Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough
scrutiny and the most deliberate consideration by the Court, involving
as it does the exercise of what has been described as "the highest and
most delicate function which belongs to the judicial department of the
government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146
SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-
equal and coordinate branch of the government We need not be
reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every presumption
must be indulged in favor of its constitutionality. This is not to say that
We approach Our task with diffidence or timidity. Where it is clear that
the legislature or the executive for that matter, has over-stepped the
limits of its authority under the constitution, We should not hesitate to
wield the axe and let it fall heavily, as fall it must, on the offending
statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the
Court thru Mr. Justice Zaldivar underscored the —
. . . thoroughly established principle which must be followed in all cases
where questions of constitutionality as obtain in the instant cases are
involved. All presumptions are indulged in favor of constitutionality; one
who attacks a statute alleging unconstitutionality must prove its
invalidity beyond a reasonable doubt; that a law may work hardship
does not render it unconstitutional; that if any reasonable basis may be
conceived which supports the statute, it will be upheld and the
challenger must negate all possible basis; that the courts are not
concerned with the wisdom, justice, policy or expediency of a statute
and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. (Danner v. Hass, 194
N.W. 2nd 534, 539; Spurbeck v. Statton, 106 N.W. 2nd 660, 663; 59
SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970];
Peralta v. Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs
of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in Citizens
Alliance for Consumer Protection v. Energy Regulatory Board, 162
SCRA 521, 540)
Of course, there is first, the procedural issue. The respondents are
questioning the legal personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar,
and in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that
they have not abused the discretion given to them, the Court has
brushed aside technicalities of procedure and has taken cognizance of
this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in
the cases before us, We hold that the same is satisfied by the
petitioners and intervenors because each of them has sustained or is in
danger of sustaining an immediate injury as a result of the acts or
measures complained of. And even if, strictly speaking they are not
covered by the definition, it is still within the wide discretion of the Court
to waive the requirement and so remove the impediment to its
addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were involving only an
indirect and general interest shared in common with the public. The
Court dismissed the objection that they were not proper parties and
ruled that "the transcendental importance to the public of these cases
demands that they be settled promptly and definitely, brushing aside, if
we must technicalities of procedure." We have since then applied the
exception in many other cases. (Association of Small Landowners in
the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the
substantive issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited.
But the prohibition of gambling does not mean that the Government
cannot regulate it in the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has
been defined as the "state authority to enact legislation that may
interfere with personal liberty or property in order to promote the
general welfare." (Edu v. Ericta, 35 SCRA 481, 487) As defined, it
consists of (1) an imposition or restraint upon liberty or property, (2) in
order to foster the common good. It is not capable of an exact definition
but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace. (Philippine Association of Service Exporters,
Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to
anticipate the future where it could be done, provides enough room for
an efficient and flexible response to conditions and circumstances thus
assuming the greatest benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does
not owe its origin to the charter. Along with the taxing power and
eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has
enabled it to perform the most vital functions of governance. Marshall,
to whom the expression has been credited, refers to it succinctly as the
plenary power of the state "to govern its citizens". (Tribe, American
Constitutional Law, 323, 1978). The police power of the State is a
power co-extensive with self-protection and is most aptly termed the
"law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro,
39 Phil. 660, 708) It is "the most essential, insistent, and illimitable of
powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic
force that enables the state to meet the agencies of the winds of
change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to
"regulate and centralize thru an appropriate institution all games of
chance authorized by existing franchise or permitted by law" (1st
whereas clause, PD 1869). As was subsequently proved, regulating
and centralizing gambling operations in one corporate entity — the
PAGCOR, was beneficial not just to the Government but to society in
general. It is a reliable source of much needed revenue for the cash
strapped Government. It provided funds for social impact projects and
subjected gambling to "close scrutiny, regulation, supervision and
control of the Government" (4th Whereas Clause, PD 1869). With the
creation of PAGCOR and the direct intervention of the Government, the
evil practices and corruptions that go with gambling will be minimized if
not totally eradicated. Public welfare, then, lies at the bottom of the
enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of
the City of Manila to impose taxes and legal fees; that the exemption
clause in P.D. 1869 is violative of the principle of local autonomy. They
must be referring to Section 13 par. (2) of P.D. 1869 which exempts
PAGCOR, as the franchise holder from paying any "tax of any kind or
form, income or otherwise, as well as fees, charges or levies of
whatever nature, whether National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of
any kind or form, income or otherwise as well as fees, charges or levies
of whatever nature, whether National or Local, shall be assessed and
collected under this franchise from the Corporation; nor shall any form
or tax or charge attach in any way to the earnings of the Corporation,
except a franchise tax of five (5%) percent of the gross revenues or
earnings derived by the Corporation from its operations under this
franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or
assessments of any kind, nature or description, levied, established or
collected by any municipal, provincial or national government authority
(Section 13 [2]).
Their contention stated hereinabove is without merit for the following
reasons:
(a) The City of Manila, being a mere Municipal corporation has
no inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870;
City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of
Caloocan, 7 SCRA 643). Thus, "the Charter or statute must plainly
show an intent to confer that power or the municipality cannot assume
it" (Medina v. City of Baguio, 12 SCRA 62). Its "power to tax" therefore
must always yield to a legislative act which is superior having been
passed upon by the state itself which has the "inherent power to tax"
(Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).
(b) The Charter of the City of Manila is subject to control by
Congress. It should be stressed that "municipal corporations are mere
creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18,
1957) which has the power to "create and abolish municipal
corporations" due to its "general legislative powers" (Asuncion v.
Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress,
therefore, has the power of control over Local governments (Hebron v.
Reyes, G.R. No. 9124, July 2, 1950). And if Congress can grant the
City of Manila the power to tax certain matters, it can also provide for
exemptions or even take back the power.
(c) The City of Manila's power to impose license fees on
gambling, has long been revoked. As early as 1975, the power of local
governments to regulate gambling thru the grant of "franchise, licenses
or permits" was withdrawn by P.D. No. 771 and was vested exclusively
on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the
authority of chartered cities and other local governments to issue
license, permit or other form of franchise to operate, maintain and
establish horse and dog race tracks, jai-alai and other forms of
gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and
establish, horse and dog race tracks, jai-alai and other forms of
gambling shall be issued by the national government upon proper
application and verification of the qualification of the applicant . . .
Therefore, only the National Government has the power to issue
"licenses or permits" for the operation of gambling. Necessarily, the
power to demand or collect license fees which is a consequence of the
issuance of "licenses or permits" is no longer vested in the City of
Manila.
(d) Local governments have no power to tax instrumentalities of
the National Government. PAGCOR is a government owned or
controlled corporation with an original charter, PD 1869. All of its shares
of stocks are owned by the National Government. In addition to its
corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory
powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a
Registry of the affiliated entities, and shall exercise all the powers,
authority and the responsibilities vested in the Securities and Exchange
Commission over such affiliating entities mentioned under the
preceding section, including, but not limited to amendments of Articles
of Incorporation and By-Laws, changes in corporate term, structure,
capitalization and other matters concerning the operation of the
affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to
original incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos.
The latter role is governmental, which places it in the category of an
agency or instrumentality of the Government. Being an instrumentality
of the Government, PAGCOR should be and actually is exempt from
local taxes. Otherwise, its operation might be burdened, impeded or
subjected to control by a mere Local government.
The states have no power by taxation or otherwise, to retard, impede,
burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the
federal government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed.
579)
This doctrine emanates from the "supremacy" of the National
Government over local governments.
Justice Holmes, speaking for the Supreme Court, made reference to
the entire absence of power on the part of the States to touch, in that
way (taxation) at least, the instrumentalities of the United States
(Johnson v. Maryland, 254 US 51) and it can be agreed that no state or
political subdivision can regulate a federal instrumentality in such a way
as to prevent it from consummating its federal responsibilities, or even
to seriously burden it in the accomplishment of them. (Antieau, Modern
Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable
activities or enterprise using the power to tax as "a tool for regulation"
(U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the "power to
destroy" (Mc Culloch v. Maryland, supra) cannot be allowed to defeat
an instrumentality or creation of the very entity which has the inherent
power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the
Constitution will be violated by P.D. 1869. This is a pointless argument.
Article X of the 1987 Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its
own source of revenue and to levy taxes, fees, and other charges
subject to such guidelines and limitation as the congress may provide,
consistent with the basic policy on local autonomy. Such taxes, fees
and charges shall accrue exclusively to the local government.
(emphasis supplied)
The power of local government to "impose taxes and fees" is always
subject to "limitations" which Congress may provide by law. Since PD
1869 remains an "operative" law until "amended, repealed or revoked"
(Sec. 3, Art. XVIII, 1987 Constitution), its "exemption clause" remains
as an exception to the exercise of the power of local governments to
impose taxes and fees. It cannot therefore be violative but rather is
consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution
simply means "decentralization" (III Records of the 1987 Constitutional
Commission, pp. 435-436, as cited in Bernas, The Constitution of the
Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not
make local governments sovereign within the state or an "imperium in
imperio."
Local Government has been described as a political subdivision of a
nation or state which is constituted by law and has substantial control of
local affairs. In a unitary system of government, such as the
government under the Philippine Constitution, local governments can
only be an intra sovereign subdivision of one sovereign nation, it cannot
be an imperium in imperio. Local government in such a system can only
mean a measure of decentralization of the function of government.
(emphasis supplied)
As to what state powers should be "decentralized" and what may be
delegated to local government units remains a matter of policy, which
concerns wisdom. It is therefore a political question. (Citizens Alliance
for Consumer Protection v. Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise
dealing with gambling is a State concern and hence, it is the sole
prerogative of the State to retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or
express charter power is generally necessary to empower the local
corporation to deal with the subject. . . . In the absence of express grant
of power to enact, ordinance provisions on this subject which are
inconsistent with the state laws are void. (Ligan v. Gadsden, Ala App.
107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in
re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St. Rep. 280, 11 LRA 480,
as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)
Petitioners next contend that P.D. 1869 violates the equal protection
clause of the Constitution, because "it legalized PAGCOR — conducted
gambling, while most gambling are outlawed together with prostitution,
drug trafficking and other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The
petitioners' posture ignores the well-accepted meaning of the clause
"equal protection of the laws." The clause does not preclude
classification of individuals who may be accorded different treatment
under the law as long as the classification is not unreasonable or
arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not have to
operate in equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No.
89572, December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from
establishing classes of individuals or objects upon which different rules
shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not
require situations which are different in fact or opinion to be treated in
law as though they were the same (Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is
violative of the equal protection is not clearly explained in the petition.
The mere fact that some gambling activities like cockfighting (P.D 449)
horse racing (R.A. 306 as amended by RA 983), sweepstakes, lotteries
and races (RA 1169 as amended by B.P. 42) are legalized under
certain conditions, while others are prohibited, does not render the
applicable laws, P.D. 1869 for one, unconstitutional.
remains a wise legislation considering the issues of "morality,
monopoly, trend to free enterprise, privatization as well as the state
principles on social justice, role of youth and educational values" being
raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v.
Energy Regulatory Board, 162 SCRA 521 —

If the law presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have
been applied. (Gomez v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that
all occupations called by the same name must be treated the same
way; the state may do what it can to prevent which is deemed as evil
and stop short of those cases in which harm to the few concerned is not
less than the harm to the public that would insure if the rule laid down
were made mathematically exact. (Dominican Hotel v. Arizona, 249 US
2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend
of the Cory Government away from monopolies and crony economy
and toward free enterprise and privatization" suffice it to state that this
is not a ground for this Court to nullify P.D. 1869. If, indeed, PD 1869
runs counter to the government's policies then it is for the Executive
Department to recommend to Congress its repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare
what the law is and not what the law should be. Under our system of
government, policy issues are within the domain of the political
branches of government and of the people themselves as the repository
of all state power. (Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public
interest so requires. No combinations in restraint of trade or unfair
competition shall be allowed. (Art. XII, National Economy and
Patrimony)
Presidential Decree No. 1956, as amended by Executive Order No. 137
has, in any case, in its favor the presumption of validity and
constitutionality which petitioners Valmonte and the KMU have not
overturned. Petitioners have not undertaken to identify the provisions in
the Constitution which they claim to have been violated by that statute.
This Court, however, is not compelled to speculate and to imagine how
the assailed legislation may possibly offend some provision of the
Constitution. The Court notes, further, in this respect that petitioners
have in the main put in question the wisdom, justice and expediency of
the establishment of the OPSF, issues which are not properly
addressed to this Court and which this Court may not constitutionally
pass upon. Those issues should be addressed rather to the political
departments of government: the President and the Congress.
Parenthetically, We wish to state that gambling is generally immoral,
and this is precisely so when the gambling resorted to is excessive.
This excessiveness necessarily depends not only on the financial
resources of the gambler and his family but also on his mental, social,
and spiritual outlook on life. However, the mere fact that some persons
may have lost their material fortunes, mental control, physical health, or
even their lives does not necessarily mean that the same are directly
attributable to gambling. Gambling may have been the antecedent, but
certainly not necessarily the cause. For the same consequences could
have been preceded by an overdose of food, drink, exercise, work, and
even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.

It should be noted that, as the provision is worded, monopolies are not

necessarily prohibited by the Constitution. The state must still decide
whether public interest demands that monopolies be regulated or
prohibited. Again, this is a matter of policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11

(Personality Dignity) 12 (Family) and 13 (Role of Youth) of Article II;
Section 13 (Social Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also
that these are merely statements of principles and, policies. As such,
they are basically not self-executing, meaning a law should be passed
by Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-

executing principles ready for enforcement through the courts. They
were rather directives addressed to the executive and the legislature. If
the executive and the legislature failed to heed the directives of the
articles the available remedy was not judicial or political. The electorate
could express their displeasure with the failure of the executive and the
legislature through the language of the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong
Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta
v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287).
Therefore, for PD 1869 to be nullified, it must be shown that there is a
clear and unequivocal breach of the Constitution, not merely a doubtful
and equivocal one. In other words, the grounds for nullity must be clear
and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who
petition this Court to declare a law, or parts thereof, unconstitutional
must clearly establish the basis for such a declaration. Otherwise, their
petition must fail. Based on the grounds raised by petitioners to
challenge the constitutionality of P.D. 1869, the Court finds that
petitioners have failed to overcome the presumption. The dismissal of
this petition is therefore, inevitable. But as to whether P.D. 1869